This is a case which involves the conviction of the petitioner under Section 1505 of Title 18, generally referred to as obstruction of justice sections of the -- of the code.

The petitioner was indicted on March 23, 1960.

And on April 1, 1960, he was arraigned and pleaded not guilty.

He came on for trial on May 31 of 1960.

And on June the 7th, the jury returned the unanimous -- unanimous verdict of guilty.

The court overruled the petitioner's motion for judgment of acquittal and the judgment on the verdict, and the appeal was taken to the Sixth Circuit -- Sixth Circuit on April 24th of last year, unanimously affirmed the action of the trial court.

The fact situation, circumstances which gave rise to the petitioner's indictment were briefly these, the transcript, I believe, fairly shows that Walter Sheridan, a -- an investigator for the Committee involved in this case, the Select Committee in -- in investigating improper and criminal activities in the labor management relation field, went to the officers of Joint Council 41, on March 21, 1958, served upon the petitioner as President of Joint Council 41, a subpoena duces tecum.

The subpoena required the production of all of the documents of Joint Council 41 for a period of nine years preceding January 1 of 1958 before the Committee in Washington forthwith, following the service of this subpoena, representatives of Joint Council 41, not employees of Joint Council 41 except as accountants, began complying with the subpoena by de -- depositing the demanded documents in the field office at Cleveland which had been established by two employees of the Committee for the convenience of the production of documents and these employees were not the same employee that served the subpoena.

On September the 9th, the same employee, the investigator, Walter Sheridan, again went to the officers of Joint Council 41 and asked to see certain correspondents files which he understood from his conversations with the field office personnel had not been produced to the field office in Cleveland.

When he finally finished his examination of these files, he indicated to the petitioner that he would like to take four folders -- four file folders with him.

Now at the time that the field office had been established, Mr. (Inaudible) and Ms. Thorpe, both employees of the Committee, had established the practice of receding for the documents that the representatives of Joint Council 41 had turned over to the field office so that on the day, September 9, 1958 when the investigator, Sheridan, demanded the four files which it was claimed were required to be produced under the subpoena, the petitioner asked for receipts in compliance with the practice that was then in existence with the field office.

At this point, there is some conflict as to the -- as to what happened.

But Sheridan's version of the testimony, I mean what happened was the petitioner demanded that the documents all before photostatted before they'd be removed from the office of Joint Council 41.

The petitioner's version of that episode is that the petitioner himself was quite willing to have given the -- the documents and did give the documents but all wanted a receipt and that through the lateness of the hour that then being almost closing time, the petitioner or investigator suggested photostatting.

Now, during the course of this trial, when Sheridan took the stand, he was cross-examined regarding the subpoena that was served upon the petitioner on March 21, 1958.

His evidence which constitutes the only affirmative evidence in the record concerning this particular subpoena was that it was, in all likelihood, prepared in Cleveland by some personnel of the Committee, not the Chairman, although the subpoena was signed in blank by the Chairman.

Now, it's upon those facts and the resolution authorizing the investigative power of the Committee together with the Committee's own rules and procedure that forms a basis of our first contention and that is that the petitioner could not have been in violation of any of the provisions of 1505 and could not have obstructed the investigative powers of the Committee.

The indictment itself charges that the petitioner withheld mutilated and destroyed two documents.

The documents were observed by Sheridan the fir -- on his first visit to Joint Council 41 office on September 9, 1958, when he returned to pick the documents up, following there, having been photostatted.

Two of the documents were missing.

One, an envelope marked Christmas List and a piece of paper, yellow paper, which contains certain names back of which were indications of a gift or sums of money.

There was another document, an invoice which indicated the purchase of eight champagne buckets from the Rudolph Deutsch Company and on the one corner of this invoice were listed eight names.

These, Sheridan observed on September 9th, when he retuned on September the 13th, the envelope in the sheet of paper were missing and the invoice had been mutilated to the extent that these eight names were missing, had been torn off and part -- partially erased.

Now, it's with the -- the effacement, the mutilation and the concealment of those two documents -- three documents that the petitioner was indicted for having obstructed the investigative power of the Committee.

Indictment charges that the Committee pursuant to its authorizing resolutions and its own rules of procedure had duly subpoenaed the documents of Joint Council 41.

Senate Resolution 74, which is the authorizing resolution of this Committee, provides that the Committee may demand documents which it deems necessary to its investigation by the use of subpoena or otherwise and further provides that the Committee shall organize and adopt rules of procedure not inconsistent with the rules of the Senate.

Justice Potter Stewart: Is there any question that the petitioner, Mr. Presser or the custodian of these documents?

Mr. John G. Cardinal: There was --

Justice Potter Stewart: He did have them in his possession.

Mr. John G. Cardinal: He had them in his -- his office.

There was some attempt at the trial to -- to show that the recording secretary was officially the custodian of the records but the Recording Secretary's office was not in the office where the actual files were kept.

Justice Potter Stewart: What was Mr. -- Mr. Presser's title or job?

Mr. John G. Cardinal: He was the President of Joint Council 41.

Justice Potter Stewart: Right.

Mr. John G. Cardinal: Joint Council 41 is an administrative unit of the Teamsters Union composed of --

Justice Potter Stewart: In the Cleveland area?

Mr. John G. Cardinal: Well, it's in the -- in the Ohio area.

It's composed of local unions affiliated to make this Joint Council.

And there are three in Ohio, Joint Council 41, generally covers the northern, eastern and part of the southeastern portions.

Justice Potter Stewart: Of the state.

Mr. John G. Cardinal: Of the state.

And then there are two other joint councils in the state.

Those three councils go together to make up what is known as the Ohio Conference of Teamsters.

Justice Potter Stewart: And Presser was President of Joint Council 41?

Mr. John G. Cardinal: And Presser was President of Joint Council 41.

Justice Potter Stewart: And as -- as of now here in this Court at least, there's no issue as to the fact that he did have these documents in his possession and was their custodian, is that right or wrong?

Mr. John G. Cardinal: I don't think that there is any question about that.

Justice Potter Stewart: I just want to be sure.

Mr. John G. Cardinal: Upon the organization of the Committee, it did adopt rules of practice and procedure which provided that the Chairman had the right to exercise the subpoena power for the Committee and also provided that any member of the Committee could exercise the subpoena power provided his authority was evidence in writing by the -- by the Chairman.

There is no evidence in the record, and from the statement of the prosecutor, there is no evidence available that the Chairman at any time authorized any member of the Committee in writing to exercise the subpoena power for and on behalf of the Committee.

The evidence is that, in all likelihood, this subpoena served upon Joint Council 41 was signed in blank because that was the testimony of Sheridan who testified on that subject that --

Justice William O. Douglas: Some -- some doubt as to whether it was or wasn't.

Mr. John G. Cardinal: As far as the record is concerned, there -- there is no specific statement that it -- that actually happened.

The nearest thing to anything -- any testimony on that was Sheridan's testimony and he said in one place, in all likelihood, that it was done -- signed in blank and another place that the chances are that it was.

But that's as close to the direct evidence on that particular point.

Justice Hugo L. Black: Any evidence that it wasn't?

Mr. John G. Cardinal: I'm sorry sir.

Justice Hugo L. Black: Any evidence that it wasn't?

Mr. John G. Cardinal: There is no evidence that it was not.

No.

Justice William O. Douglas: Did the -- the Chairman of the Committee testify at the trial?

Mr. John G. Cardinal: Yes.

Justice William O. Douglas: He testified as respects the practice of signing subpoenas in blank?

Mr. John G. Cardinal: No, he didn't testify as to that practice.

His testimony was that he had the authority to issue subpoenas and that generally in the investigative process of -- of this Committee, he did issue subpoenas, whether or not they were signed in blank and filled in or prepared by investigators or other employees of the Committee, was not touched in his testimony.

On Friday before we had recessed, I had related the facts upon which I've been concluded that the McClellan Committee as we viewed the situation was not in its proper exercise -- doing proper exercise of its investigated powers and that therefore couldn't be no violation of Section 1505.

Bases for our conclusions and the reasons therefore we feel are based upon the fact that the compulsory process of the Committee is a deligation of a power from Congress which must be strictly construed to have any valid invocation of that power against one whom the power is asserted.

Justice John M. Harlan: Assuming you're right on that but the subpoena is invalid, what relevancy is that got to this charge?

Mr. John G. Cardinal: Would be that the --

Justice John M. Harlan: Supposing all the Committee had said -- supposing there had been no subpoena issued that the Government had proved that the -- that the defendant knew of the Committee's interest in these documents and then what happened did happen.

Wouldn't that make out of case under the obstruction of justice statute?

Mr. John G. Cardinal: I think assuming that if he knew under circumstances that the Section 1505 does include situations that are not involving the compulsory process.

However, in this instance, the Committee was attempting to proceed, to obtain documents through the compulsory process and the knowledge that would be obtainable or would be referable to the petitioner or to Joint Council 41 must necessarily come from that subpoena.

Justice John M. Harlan: Yes, but there was evidence in the record that the Government investigator had a Committee investigator and have a conversation with the officers of the union or with this man particularly.

Where they'd arranged it, it would have this material produced?

Mr. John G. Cardinal: But the petitioner in Joint Council 41 ought to have the right to rely upon the efficacy of what was extensively a valid process.

In this instance, it was not the process of the Committee but was the officious act of an investigator.

Justice Felix Frankfurter: Do you mean it's from -- do you mean that it's from the subpoena that he learnt that the documents are relevant to the investigations.

That outside of that he didn't know or couldn't know, is that what you mean?

Mr. John G. Cardinal: I'm not sure Mr. Justice Frankfurter whether you mean the petitioner or the investigator?

Justice Felix Frankfurter: I mean the petitioner.

The petitioner -- the subpoena told him what doc -- what documents were wanted, is that right?

Mr. John G. Cardinal: That's right.

Justice Felix Frankfurter: And you say that a subpoena is invalid.

Now what I'm asking is, could he only derive knowledge of the desire of the Committee to have that from the subpoena or would the subpoena alone tell him that those documents are relevant in outside of what the invalid subpoena from your point of view told them, he wouldn't know that they were relevant?

Is that --

Mr. John G. Cardinal: That's -- that's my position.

Justice Felix Frankfurter: But suppose somebody called him up on the telephone and said we're going to send somebody around.

The subpoena will be served on you and -- in tomorrow in two hours.

And I'll tell you now so you might get ready for the things, he wants this -- in these documents and he then destroys them.

Would that be within the statute?

No subpoena outs -- outstanding at all.

Mr. John G. Cardinal: I think of the fee submitted to the jurisdiction of the Committee --

Justice Felix Frankfurter: But I -- no more than what I've given you.

The Committee called him up and said, we just assured you, determined as just of the -- the sub-chairman is best to have signed the subpoena and an investigator is on the way to get you on about two hours outside the country somewhere and he thought of a million opportunities to get the documents together.

He has no -- the subpoena hasn't reached him and he then does away with the documents.

Would that be within or without the statute?

Mr. John G. Cardinal: I think it's with without the criminal statute.

Justice Felix Frankfurter: What do you with McCracken?

Mr. John G. Cardinal: Where the -- pardon?

Justice Felix Frankfurter: What do you do with McCracken, the McCracken case?

Mr. John G. Cardinal: There was an absolute refusal.

There is no refusal with --

Justice Felix Frankfurter: No, no, no, no.

They -- there was no -- correct me if I'm wrong, I haven't looked at the case.

My memory may betray me.

But McCracken wasn't served with a subpoena was it, some other people were?

Mr. John G. Cardinal: In this instance, I think the distinction is that the subpoena is not returnable to a judicial officer to whom objections maybe taken.

I believe also that an extensively valid subpoena should warrant the petitioner's reliance upon that validity.

But if in fact it is a void subpoena that the Committee has not been acting and is not acting and that therefore, the petitioner or any other accused is not in violation of 1505 or obstructing the due and proper power of inquiry by that Committee.

The situation does not -- is not different then, those situations which have existed in unlawful searches and seizures where the act of the official survey is completely void.

The voidness of the -- or I should say the voidability of the process is pervasively infects the action with which they attempt to proceed.

Justice Felix Frankfurter: Of the invalidity of the subpoena, wipe out the practical knowledge which he derived from this invalid piece of paper.

Does that sponge out the information it conveys to him that the Committee wanted these documents as a practical fact.

Mr. John G. Cardinal: In my opinion, it does.

Justice Felix Frankfurter: Well, it may legally but does it -- because I know a piece of paper was invalidly issued therefore have I derived no knowledge upon it?

Mr. John G. Cardinal: Morally, maybe no.

But as -- as an official act in the Committee, there is no knowledge.

If in fact the action ultimately becomes valid, there maybe some knowledge attributable to that accused but not by virtue of the process, by the virtue of the circumstance which later occurs.

Chief Justice Earl Warren: Mr. Cardinal, I was wondering if -- if this petitioner read in the newspapers that as a result of investigation of the Committee that these documents were needed by the Committee and that the Committee intended to get it from him.

And thereafter, he destroyed them or altered to do so they were not to tell the truth.

Would he have committed the crime under the section?

Justice Felix Frankfurter: I don't think so.

I think --

Chief Justice Earl Warren: But what is the wording of the lan -- of the statute?

Justice Felix Frankfurter: Apart from what she was -- under which he was --

Chief Justice Earl Warren: Yes, yes.

Mr. John G. Cardinal: Whoever corruptly or by threats or force or by any threatening letter or communication influences, obstructs or impedes or endeavors to influence or obstruct or in impede to do any proper administration of the law under which such proceeding is being had before such department or agency of the United States.

Or to do in proper exercise of the power of inquiry under which such inquiry or investigation is being had by either House or any Committee of either House or any joint committee of the Congress shall be find not more than --

Chief Justice Earl Warren: Well, it's limited to threats or force and things of that kind.

Is that the reason it wouldn't be a violation?

And the -- and in the hypothetical I gave you there was no element of force or threats or anything of that kind.

Is that the -- is that the reason?

Mr. John G. Cardinal: That is a distinction I was attempting to make --

Chief Justice Earl Warren: Would have -- what -- what distinction?

I'd like to get the other distinction.

Mr. John G. Cardinal: My distinction or the distinction that I was attempting to make was that I recognize the fact that the Committee may obtain information through investigation by method other than the compulsory process.

And then I would think would be by voluntary acts upon the part of a witness or an association not by any indirect act on the part of a spokesman for the Committee which by some other indirect source finds its way to the person to whom they eventually will direct an inquiry.

That was the distinction that I was making that there was a distinction there between the compulsory process and the -- and the voluntary act of production.

Knowledge on his part would necessarily stem from -- in my opinion of a -- an official act of the Committee to warrant this subjection to the proscriptions of the criminal statue.

Chief Justice Earl Warren: May I ask a more general question than the one that I did then?

Does a person who destroys or alters his records to avoid investigation of his -- of his documents, bring in within the act or does it not bring him within the act unless he has been subpoenaed?

In other words, if he just hears -- hears about it and hears that the investigation is going on, is he authorized so far as this statute is concerned, to destroy his records or alter his records so they cannot be used by the Committee?

Mr. John G. Cardinal: I think that -- I think that he may and avoid criminal proscription of the statute.

Chief Justice Earl Warren: Well, that's all we're talking about --

Mr. John G. Cardinal: Yes.

Chief Justice Earl Warren: -- here, isn't it?

Mr. John G. Cardinal: I do.

Chief Justice Earl Warren: I see.

Well I just wonder -- ask on -- I'm not arguing with you on it though.

Justice Felix Frankfurter: Did you say to the Chief Justice -- did you answer the Chief Justice that you don't contend it outs -- it is outside of prohibition of the proscription of whether corruptly, obstructor indeed, what did you say to him?

Mr. John G. Cardinal: I think that --

Justice Felix Frankfurter: Before seeking that argument.

Mr. John G. Cardinal: Well I think I -- the argument that I was not making was that only by compulsory process may the Committee obtain information through investigation.

I was attempting to make a distinction between the type of investigation where they compel the -- the production of documents or testimony of a witness and the type where they may obtain it voluntarily.

But the voluntary act as I see it would be on the part of the institution which would produce the documents or the witness that would give the information.

Justice Felix Frankfurter: Do I understand you -- may I infer from what you said that you're not making -- you're not directing yourself consideration to what the corruptly means in that context.

So I infer -- may I infer from what you said that it corruptly means having no justifiable -- willfully seeking to despoil some documents that a Committee wants, would that take care of corrupting, whether corruptly -- corruptly doesn't mean usually has nothing to do with money especially.

Mr. John G. Cardinal: I wouldn't think so.

I think that the as a definition of the -- that would be a good definition.

Justice Felix Frankfurter: Do you think that if a man -- that it would cover corruptly if with the view to despoiling with the view of making impossible the availability of the document, he just destroyed it for that purpose that would be corruptly?

Mr. John G. Cardinal: I think that there's a definition that that would be -- that is correct.

Justice Felix Frankfurter: Whether you mean that a man can -- can be tried under this statute who has not been for destroying the papers or who has not been served with the subpoena to get those papers?

Do you think he can?

Mr. John G. Cardinal: I don't --

Justice Hugo L. Black: I just call your attention to the fact that that was not in the McCracken case.

He was served with a subpoena.

That was the allegation.

He was served with a subpoena before the papers were destroyed.

Mr. John G. Cardinal: I don't --

Justice Hugo L. Black: I think --

Mr. John G. Cardinal: -- think --

Justice Hugo L. Black: -- know of any case where there's ever been a prosecution under this statute on the basis because a man knew the Committee was investigating his certain field?

They might want his papers or did want his papers.

Mr. John G. Cardinal: No.

Justice Hugo L. Black: He could be convicted for -- for destroying those papers?

Mr. John G. Cardinal: No.

I don't know of such a case.

Justice Hugo L. Black: In this particular investigation, the McCracken case has been going on quite a long time.

And if it was known that his purpose was to investigate (Inaudible) contract.

Do you think that the fact that these people had the papers it might (Inaudible) might need, might have well-known as they wanted them and could've been prosecuted for destroying those papers before a subpoena was served by the (Inaudible) --

Mr. John G. Cardinal: I don't think so.

Justice Hugo L. Black: Has the Government cited in the cases to support such a thing with reference with this Senate power, punished for contempt with reference to influencing a Committee before a subpoena has been served on him?

Mr. John G. Cardinal: Not as they pertain --

Justice Hugo L. Black: Unless (Voice Overlap) --

Mr. John G. Cardinal: -- to investigation.

Justice Hugo L. Black: Unless he was guilty of associating as a conspirator or an aider and abettor of the man who had the subpoena.

Mr. John G. Cardinal: They have not as it pertains to an investigation.

Justice Hugo L. Black: Has there been evidence, is there anything in this record that show that this man destroyed the papers after the subpoena had been served on someone, a proper legal subpoena from the Committee and that he was aiding and abetting that man to defeat this Committee's orders?

Mr. John G. Cardinal: There is none Your Honor.

Justice Hugo L. Black: There is none.

Mr. John G. Cardinal: As a matter of fact, there hasn't been a subpoena served upon the petitioner or Joint Council 41 to this day other than the one which is the subject of this lawsuit.

Because of the imperfection that existed in which we claim did exist, we are also of the opinion that there -- if there could not have been from the time that it was served until of the acts late in the indictment were completed, a waiver of any objection of procedural regularity which would in anyway void the subpoena in the original instance.

The -- the Chairman was authorized to issue these subpoenas.

He took the stand against the petitioner and was never asked and did not testify that he issued the subpoena.

We think that there is a significance in the word issue that for the Committee to properly be in the exercise of its investigative powers, the substance of that subpoena along with the authoritative signature must come from the power which Congress has given the Chairman alone.

There was one exception in that according to the rules of procedure and that was if the Chairman could if he so decided, grant the power to issue subpoenas to another member of the Committee provided that the execution of that authority was in writing.

There is no evidence in the record that there was any authority issued by the Chairman.

Senator McClellan stated that the authority reposed in the Committee was in -- in the chair for issuing subpoenas.

Therefore, we think and we submit to the Court that on this issue, the invalidity of the pros -- of the -- of the subpoena prevented the petitioner or anyone connected with the Joint Council 41 in -- in authority to waive any objections to the procedural requirements and due to the court or to the Committee's own rules of procedure, the only method in which a delegation of the authority for issuing subpoenas had to be in writing and not to an investigator.

Justice Hugo L. Black: Do I understand correctly that the Court of Appeals sustained this conviction on the basis that it could be sustained even though there has been no valid subpoena served and on the mere effect that this man, who is alleged to have destroyed the papers, had knowledge that the Committee wanted them?

Mr. John G. Cardinal: That's -- that's what the Court of Appeals wrote.

Their decision was based upon the fact that the record substantially showed knowledge on the part of the petitioner and therefore, the trial court was correct in holding that the indictment may not be or should not be dismissed because the subpoena was validly issued by the Committee.

In that respect, I might say that the -- the trial court was not of all sure, the record discloses -- the trial court said that he wasn't sure in this case but he thought that in the -- in the federal investigating committees, that this type of subpoena had been in use and would be valid in this case.

The Court of Appeals then specifically held that it was properly issued.

We believe, we submit to the Court as I said that this warrant and justifies now the dismissal of the indictment against the petitioner.

However, we are not at all resting exclusively on -- on that particular question although we think that that is a pervasive in -- infection with which affects the -- the complete case.We also believe that the testimony of Senator McClellan against the petitioner was prejudicial to his rights both as to form and as to fact.

The Senator testified that there was some investigation made in Ohio in 1958 concerning Senator Bender -- ex-Senator Bender because the committee was interested in whether or not Mr. Hoffa had fulfill the promise to clean up the union.

Senator Bender apparently was assigned as one of the members of the Internal Commission who want to clean up of the -- the union.

He did not testify that the documents under subpoena were at all pertinent to that inquiry of the Committee.

His most specific statement was that the Committee was interested in the use of union funds for the payment and purchase of Christmas gifts.

The investigator himself testified that he came into Ohio to investigate the appointment of Bender to the cleanup committee.

Senator McClellan then was permitted to read what the findings and the conclusions of the past investigations of this Committee had resulted in and state why in his opinion the names that were listed, allegedly listed on the invoice, were pertinent to the then investigation of the Committee.

The substance of -- of the names was an attempt to show and display to the jury the reputation which the McClellan Committee had concluded, existed on those men whose names were listed in the invoice.

Before the lunch period, I have mentioned that our second disagreement in this case through the courts has been with the testimony of Senator McClellan.

Now, Senator McClellan did testify and his testimony date may -- maybe broken down into four general categories.

First -- first of which, he testified to the resolutions which in the authorizing resolutions and the rules of procedure that were enacted pursuant thereto, he testified concerning the investigations that the Committee had handled in the past and the recommendations which they had made with special findings relative to certain individuals.

He was then permitted to testify by reading the testimony of Investigator Sheridan before the Committee as a corroboration of Sheridan's testimony because Sheridan later did testify to the same things that the Senator read from the Committee record.

I might add at this point that the case was tried and conceived by the prosecutor and conceived by the trial court as if it were an attempt on the part of the prosecutor to lay a foundation to show pertinency before the Committee and that can be seen by the evidence which the trial court did let in and asserted throughout the trial and in overruling the objections to the Senator's testimony and in his charge that the relevancy or the pertinency of these documents to the question under inquiry by the Committee was a matter of fact.

The evidence before categories of evidence that was offered by Senator McClellan substantially were exclusively for the proof of that element viewed by the prosecution in the trial court as questions of fact.

This testimony was offered or admitted over the objection of -- of the defendant and from it the prosecutor cross-examined the -- the petitioner and made the rather derogatory remarks about members of the Teamster's Union a part -- a large part of this argument to the jury.

Chief Justice Earl Warren: I say, were those remarks derogatory remarks about his associates taken from that hearsay evidence that you've just been telling us about?

Mr. John G. Cardinal: Yes.

From the special findings as they were set forth in the interim report so-called and the remarks of the -- that were made by Sheridan to the Committee which were then at the trial read into evidence over objection.

The -- the crowning thorn of -- of what we think is the objectionable evidence is when the Senator was permitted to testify before the jury that the documents which were the subject of the -- of the subpoena and for which the petitioner had been indicted were in fact and in law pertinent to the investigation of the Committee.

In this regard, we feel that the -- the Court treated the pertinency or relevancy question as a matter of fact when in fact it is a matter of law if the trial court were correct, the question of facts should have been submitted to the jury without the conclusions of the -- of the Senator upon that -- that element which should have been in his view a matter of fact for their -- for their determination.

Chief Justice Earl Warren: What position did defense counsel take on at that time on a question of whether this is one of law or one of fact?

Mr. John G. Cardinal: There was a question of law and -- there was a general objection to the taking of the testimony of Senator McClellan following his identification of the resolutions.

Chief Justice Earl Warren: No, I meant on submitting -- question of submitting it to the jury or having -- having the court decide it as a matter of law.

Chief Justice Earl Warren: What was the position of defense counsel at the trial?

Mr. John G. Cardinal: Well, it was a matter of law.

There is nothing in the record to indicate that it said --

Chief Justice Earl Warren: I --

Mr. John G. Cardinal: -- that that was brought home to the trial judge.

Chief Justice Earl Warren: Well, there is just -- there's nothing in the record that's --

Mr. John G. Cardinal: That's right.

Chief Justice Earl Warren: Yes, yes.

Mr. John G. Cardinal: The -- the -- this came up during objections to the admission of Senator McClellan's testimony and a colloquy ensued between the prosecutor and the trial court as to the admission of Senator McClellan's testimony in which the trial courts stated that it was a question of fact and this was a way that should be handled to which an objection was taken, I hasten to add.

Your Honor, may I save a few minutes of my time.

Chief Justice Earl Warren: You may.

You may Mr. Cardinal.

Mr. Medalie.

Argument of Richard J. Medalie

Mr. Richard J. Medalie: Mr. Chief Justice, and may it please the Court.

Now, the basic questions in this case concerned the validity of the subpoena and the admissibility of Senator McClellan's testimony but there is a threshold question as to whether the evidence was sufficient to support the conviction evidence be going to knowledge, evidence going to the obstruction itself.

And perhaps for the first few minutes of my argument it might be helpful if I discuss the particular elements of this crime of obstructing congressional committee and sketch out some of the bake -- back -- basic background facts concerning the nature of the investigation and the documents involved.

Now, the crime of obstructing or endeavoring to obstruct a congressional committee as the Government sees it consists of four elements at least as it concerns this case.

The first one is that there must be a duly authorized investigation.

Secondly, that the documents or records, the information which the Committee is seeking must be pertinent to the subject matter of the inquiry.

Thirdly, the defendant must have committed acts with respect to those documents which in fact constitutes an -- constitute an obstruction or an endeavor to obstruct.

And ultimately, he must also be shown to have a specific guilty knowledge, a specific intent to obstruct the inquiry.

And it was the Government's contention that all of these elements were proved beyond a reasonable doubt at the trial below.

The due and proper exercise of the power of inquiry, is that what you mean by duly authorized?

Mr. Richard J. Medalie: Yes.

Impede the due and proper administration of law under -- oh I'm sorry, down here, the due and proper exercise of the power of inquiry under which such inquiry to being had --

Justice William J. Brennan: Well may I ask as to that?

What if the Government's burden, the prosecution under this Section in respect of that element?

Mr. Richard J. Medalie: I think it must indicate that there was an inquiry and pursuant to the resolution, this inquiry was being carried out in a orderly way of -- if your question relates to the subpoena --

Justice William J. Brennan: No, no, I will not --

Mr. Richard J. Medalie: It just relates to the inquiry.

Justice William J. Brennan: I'm just trying to get --

Mr. Richard J. Medalie: Yes.

Justice William J. Brennan: Does the Government have a view as to what its burden is if that be an element of the offense?

Mr. Richard J. Medalie: Well, this is -- this is a difficult problem because, there is an -- a confusion here perhaps between this statute and the content of Congress statute and the -- and indeed even the perjury statute as far as materiality.

I am not sure whether pertinency of the inquiry or pertinency of the documents to the subject matter of the inquiry is an essential element.

For example, perhaps all that's necessary is to show that there -- the Committee had reasonable grounds to believe that the documents were -- were pertinent or that there was a reasonable basis for the inquiry without more, it --

Justice William J. Brennan: Well, irrespective of that, I take it that this means -- at least this much doesn't it?

That the Committee activity involved --

Mr. Richard J. Medalie: Yes.

Justice William J. Brennan: -- was in connection with something which can be agreed to be or how much conclusion can be reached that that something, that inquiry was an inquiry in the due and proper exercise of the power of inquiry.

Mr. Richard J. Medalie: Well, that's right and the Government at trial accepted the burden whether or not it has in fact -- whether or not that burden does exist in fact.

It accepted and burdened the requirement to show that the -- the specific inquiries which was carried on were reasonably related, were indeed pertinent to the authorizing resolution of the Congress that what it was doing was pursuant to its lawful powers and indeed that the documents which were sought were in fact pertinent to the subject matter of any of the inquiry.

Justice William J. Brennan: Well, may I ask you some (Inaudible) question (Voice Overlap)?

Mr. Richard J. Medalie: Yes.

Justice William J. Brennan: Now, is the determination whether or not the particular inquiry to which this effort to get these papers related was a due and proper exercise of power of inquiry, a question of law or of fact?

Mr. Richard J. Medalie: I believe it's a question of law.

Justice William J. Brennan: That is for the judge.

Mr. Richard J. Medalie: It is for the judge and we have not -- we have not contested for example the -- this holding -- the holding of this Court in Sinclair or its reaffirmation in Braden that pertinency in -- in its total scope is a question of law for the judge to decide.

Justice William J. Brennan: And was it handled in this case as a question of law?

Mr. Richard J. Medalie: Oh, well, certain aspects of it were.

Maybe it would help if I pointed out in the charge.

At page 294, the judge does say, “The Congress is within its powers and was within its powers and function to conduct inquiries and investigate into the subjects upon which this is power by the constitution to legislate and it was acting within the scope of its powers and conducting an inquiry in respect of unlawful activities in Labor, Management Relations.”

Then it does go on, however, and say that inquiries are required to have reasonable relation to the subject and so on.

Then, on page 302 -- I'm sorry 3 --

Chief Justice Earl Warren: Then does it go on beyond that -- or it says on purpose of such inquiry investigation and -- and charge the jury that it must find on that issue?

Mr. Richard J. Medalie: -- it then comes and says in addition to proving that the defendant he faced etcetera has required that the Government prove that the records and so on were relevant to the inquiry of the Committee.

And then on 304, the Court says to the judge -- it says to the jury, it will be for you to say from the evidence of the subject whether the sending of the gifts by the Joint Council 41 to public officials and so on was a type of practice relevant to the inquiry investigation and whether defendant with knowledge and purpose of the relevant and -- of the Committee in the relevancy of the names, of the recipients' gifts and so on, withheld the names from the Christmas list.

So, in fact -- well, let me put it this way.

As a matter of law, the question of pertinency is for the judge to determine as a matter of law according to Sinclair and Braden.

In the present case, at least part of the question of pertinency and I must admit that the major part, the relationship of the documents to the specific entry was submitted to the jury as a question of fact.

And perhaps, even though we're out of order in argument, I -- first we should clear this up because this involves two -- two questions really.

First of all, the question in regard to Senator McClellan's testimony as related to the issue of pertinency whether it was within the discretion of the judge in the absence of objection to allow the jury to hear the question of pertinency or in all the testimony which went to pertinency.

And then you have a second question namely even if it is not -- or even if it is within the discretion of the judge to allow the jury to hear it, is it also within the discretion of the judge to submit that this question of pertinency to the jury in the absence of objection.

And perhaps, I should turn to that now because it probably is concerning you and let's try and -- a couple of this problem.

The question of -- first of all as I mentioned, it is a matter of law to be determined.

But while Senator McClellan was testifying, and indeed throughout the whole trial although there were specific and general objections to various portions of this testimony, there was no objection to his presenting any evidence as to pertinency to the jury as such.

You can look through the record in vain for these objections.

And we take the position that in the absence of the objection there, the petitioner cannot -- should not be able to raise the objection here before the Court and indeed considering the Braden case, which of course was precisely the reverse situation in which the petitioner said, “It should be submitted to the jury rather than the judge.”

This Court did point out in the opinion Mr. Justice Stewart that he did not raise an objection.

But to be sure, he went on to say that even so as a matter of law, it was handled correctly.

In addition, however, and this -- we now come to one of the peculiarities of the statute namely that pertinency isn't by -- specific words in -- injected into the statute and isn't in fact -- and related obstruction of justice statutes when you -- a statute when you're dealing with impeding a witness, the concept of pertinency has no place.

I mean you have to make sure of is that the -- the person is to be a witness in one way.

Justice William J. Brennan: Well -- but I suppose Mr. Medalie, this would be true if one corruptly impedes on inquiry which has not in the due and proper exercise to the power of inquiry there'd be no offense under the statute, could they?

Mr. Richard J. Medalie: Well, I -- I would agree with you or at least the Government at trial undertook this burden and I certainly will not contest it here.

But peculiarly enough, in this situation, the testimony or the issues as to pertinency are -- seemed to be so inextricably interrelated with the question of knowledge of the petitioner, the motive of the petitioner, indeed obstruction itself that under these circumstances, we believe that it was not outside the discretion of the justice submitted, especially when you do turn for example to the exact testimony of Senator McClellan because virtually, every word, every sentence of his testimony, not only went to pertinency.

It went to knowledge.

It went to motive.

I think it would have been rather difficult situation for the judge to say right here, you must stop Senator McClellan and we'll hear that testimony outside the -- and dismiss the jury.

Now, the next sentence we will bring the jury in, especially I should think in a situation such as we have here where the judge under proper admin -- admonition to the jury with careful explanation to the jury as to precisely the limited purpose for which the Senator's testimony as to pertinency was being presented to the jury.

I think it was within his broad discretion in the absence of objection to allow the jury to hear this testimony.

And I -- just for -- perhaps the Court will be interested, cite to you pages -- during the testimony itself, pages 31 and 32, 35 and 36, 42 and 43 where this -- you have this constant admonition.

Indeed and the judges charged to the jury when he dealt with Senator McClellan's testimony, when he dealt with the issue of pertinency, he specifically told them that this particular testimony relating to this subject was allowed and not for purposes of -- for example corroboration, but it was allowed in purposes only as related to pertinency and knowledge.

The prosecutor went out of his way to tell the jury.

Don't confuse the issue of -- for example, page 344 is an excellent example on what this really meant.

He said now, the purpose for bringing out whether or not Beck, Hoffa, Brennan or Dorfman or anyone else had a bad reputation.

Isn't that so that it will reflect in anyway on the defendant or it shouldn't.

The reason as he goes on to show is that it would have a direct relationship to motive and as it had a relationship to pertinency itself.

Chief Justice Earl Warren: Is that in the argument or in the offer of proof?

Mr. Richard J. Medalie: No.

This was in the argument to the jury but in the -- oh well, let me show you the offer of proof then.

Mr. Richard J. Medalie: In the offer of proof at pages 31 and 32, 35, 36, 42, and 43.

Chief Justice Earl Warren: The reason I was asking because I understood counsel to say that this hearsay testimony was used by the prosecutor for purposes other than pertinency and --

Mr. Richard J. Medalie: No.

Chief Justice Earl Warren: -- in his presentation to the jury.

Mr. Richard J. Medalie: No.

Perhaps there was a little confusion here because of a certain problem of -- at page 335, when he discussed Mr. Sheridan's testimony, he says, “The purpose again of reading the testimony was not only to corroborate Mr. Sheridan's specific testimony.

It was to show the Senate was interested in these two documents and so on."

I should point out that this was a mistake by the -- of court reporter at page 386 of the record.

The court reporter in a special -- in a special deposition in which both sides ask questions stated that beginning at line 21 of the record as the transcription reads, the purpose again in reading the testimony was not only to corroborate Mr. Sheridan's specific testimony.

It should read the purpose again and this is the prosecutor saying, “Reading that testimony was not in any way to corroborate Mr. Sheridan's specific testimony.

It was going to the question of pertinency and that alone.”

So, here we have as I say careful explanation, careful admonition to the jury and in the situation in the absence of objection where these issues are inextricably interrelated.

I do not believe that it was outside the discretion of the judge to allow the jury to hear it.

Now, we do come to the second problem namely whether it was within the discretion of the judge to allow the jury to have decided the question of pertinency because indeed that is precisely what the judge did.

Again, interestingly enough, absolutely no objection by the other side.

Indeed -- now, there came time -- and I refer to pages 386 and 387 of the record.

There came a time when both sides presented requests to the court and the Government requested the court to decide as a matter of law that these documents were pertinent to the inquiry.

And the petitioner did not request that he decide the documents were not pertinent.

Indeed, petitioner made no statement whatsoever as to how the issue of pertinency should be decided whether by judge or by jury.

And indeed, at page 386 when the judge finally decides the question -- finally decides which request to grant and which request not to.

He decides that he's going to submit the issue of pertinency to the court -- I mean to the jury.

And again, no objection, no exception by the petitioner and all --

Chief Justice Earl Warren: Is that stated to counsel or --

Mr. Richard J. Medalie: Yes it is.

As a matter of fact, they had -- as this indicated, they had a -- a conference in which they discussed it at length.

I take it at least the indication is from the record about the request and they were fully aware of what request were being granted or rejected, no objection by the petitioner or whatsoever.

And finally, after the charge was made, the charge in which the issue of pertinency was submitted to the jury at page 307 of the record, you can see and again, I think it maybe well to even quote it here, “That is all”, says the judge, "I intended to say to the jury, are there any matters you feel I may have inadvertently misstated."

Mr. Kiernan, that's the Government counsel, "Nothing Your Honor."

And Mr. Knachel, "I have no suggestions Your Honor."

And then down below, counsel was -- were requested whether they wish to take exceptions to the charge and Mr. Knachel again said, “The defense has nothing Your Honor.

No exception, no objection, whatsoever.”

So here again, it is not -- not only should petitioner not be allowed to present this objection now before the court.

But it seems to me that throughout the record itself, there is an indication of a calculated trial tactic of having this particular issue of pertinency, it precisely presented to the jury.

And why is that?

Because petitioner obviously knew or could surmise that the judge would never have held that these documents were not pertinent to the inquiry.

And so what did he have to lose?

Indeed, he had everything to gain by allowing the jury.

He could hope to capitalize on whatever confusion this would've presented.

In fact, this Court in Johnson versus United States, 318 U.S. stated, “We cannot permit an accused to elect -- to pursue one course at the trial and then when that has proved to be unprofitable to insist on appeal that the course which he rejected at the trial be reopened to him.”

And indeed, we go further and say that there could not have been any prejudice by having this issue submitted because as I will now indicate, these documents were in fact pertinent to this nature, to the subject matter of the inquiry as a matter of law, no judge -- no judge, a reasonable judge could possibly find that they were not.

And as a result, what actually happened was that the Government had one more obstacle to overcome in order to convince the jury that petitioner Presser had obstructed the lawful inquiry of the Committee.

Chief Justice Earl Warren: When was this issue first raised Mr. Medalie?

Mr. Richard J. Medalie: As to -- I'm sorry.

Chief Justice Earl Warren: The one who we've just -- you've just discussed.

Mr. Richard J. Medalie: Oh, whether it should be presented to the jury -- I take it, it was raised when the Government submitted its request to the judge that he decide the issue as a matter of law.

Now --

Chief Justice Earl Warren: No, I meant -- I meant when -- when did the -- the petitioner --

Mr. Richard J. Medalie: Oh!

Chief Justice Earl Warren: -- first raised it as having been error?

Mr. Richard J. Medalie: No, I think it was on judge -- he may have raised it on the motion for N.O.V. and if not -- if not, then at the Court of Appeals' level.

And mind you, if one reads the briefs and especially the reply brief of petitioner, this issue of presenting the issue of pertinency to the jury is not really prop -- it's not even a question before this Court properly speaking and it was not raised, question as one on certiorari.

It is brought in within the context of whether -- in the whole context of whether that Senator McClellan's testimony was admissible and then he goes into the discussion of pertinency and goes into the question whether pertinency should've been submitted to the trial.

Now, we don't of course base our argument on that, whether it was or was not raised before this Court as proper question in certiorari.

But it -- it's interesting that it is almost a -- an afterthought or it's riding on an objection which petitioner seems to indicate is more important whether the McClellan's testimony was admissible at all.

Therefore, in the absence of objection especially under the circumstances of this -- of the relationship of pertinency to knowledge and so on, I do not think that one could really say it was an error for the judge to have exercised his broad discretion in allowing the jury to decide this issue especially in the absence of objection from petitioner.

And I suppose we do come to this question, although the Government doesn't consider it a serious question, whether indeed the documents were pertinent to the inquiry.

I think perhaps it might help to under -- to know what was the scope of McClellan investigation as I -- first of all, McClellan Committee had been set up under resolution to conduct an investigation into criminal and other improper practices in labor management relations and to see whether there were any changes that had to be that our laws had to be changed in any way.

And as we all know, the Labor Management Reporting and Disclosing Act was passed in due course.

Now, as an integral part of this investigation, the McClellan Committee undertook an inquiry into the question of misappropriation and misuse of the union funds, both operating funds and welfare funds in order to enrich union officials or to influence political and public figures.

And it also inquired into the possible domination of various unions by people outside the labor movement.

Now, among the union's investigator was the Teamsters Union and among those specific inquiries which undertook with regard to the Teamsters and which is specifically relevant here was the relationship of Teamsters Union officials to racketeers or reputed racketeers.

And secondly the relationship present and past between the Teamsters Union and former Senator George Bender who was set up as the head of the so-called Clean Up or Anti-Racketeering Committee which the Teamsters Union had set up in order to investigate purportedly the corruption and improper practices of its own officials.

What the --

Justice John M. Harlan: (Inaudible)

Mr. Richard J. Medalie: He was a Sen -- I believed 1954, he was a Senator still at -- in 1955, 1956 I believe he -- he was probably defeated.

The --

Justice John M. Harlan: (Inaudible)

Mr. Richard J. Medalie: Yes, he was a Senator.

The -- the date of the Champagne Bucket gifts was 1955.

And he was a Senator at that time and I should perhaps add that he was in charged of a -- an investigation into Teamster activities among other things --

In 1955, when the gifts of Champagne Buckets were given to the various people involved Beck, Hoffa, Bender, Dorfman, etcetera.

He was a Senator at the time.

He was appointed in August of 1958 and mind you this in -- the incident which we charged was the obstruction of Congress occurred in September 9th, somewhere between September 9th and September 13th, 1958.

In August of 1958 as I understand it, Senator Bender, former Senator -- now, former Senator Bender was appointed as head of this Clean Up Committee --

He had received the gift, the Champagne Bucket or at least the invoice indicates that the Champagne Bucket had been purchased for Senator Bender in 1955.

In 1958, he was appointed there as the Head of the Committee and as a result -- oh, and as in -- Hoffa himself, Jimmy Hoffa himself had set up this Committee, this Clean Up and Anti-Racketeering Committee and appointed Senator Bender as the -- the Head of the Committee.

As a matter of fact, I might point out that in hearings in 1959, July 1959 before the select Committee which is the hearings of the 86 -- 86th Congress first session.

This is part 55 with the hearings at page 19420 Senator Bender testifies as to his relationship and as to his -- well, the results of the Bender Com -- of Bender Committee.

I should point out I believe that according to press reports in December of 1958, Mr. Hoffa reported to his constituency, the union that as a result of preliminary studies by the Bender Committee, Bender had found or the Committee had found, the Commission had found that there was no information as to the possible influx of racketeers or the possible corruption of local officials.

But Bender continued, however, during that period of time and as late as July 1959, he was still Head of this Commission, the time.

And -- and this information was brought up in the hearing but be that as it may these two was -- was the subject of the inquiry.

And we now come of course to whether these documents were pertinent to the inquiry.

I'm not sure that one even has to go to discuss it because the documents consisted of the mutilated invoice, the concealed and withheld enveloped saying Christmas gift on it and the memorandum with the names which had recently been on the invoice in addition to other names plus notation of gift or money and so on.

In other words, the invoice itself had shown that union funds, I suppose a (Inaudible) from the union members were being used to buy expensive Christmas gifts for union leaders that is, Beck, Hoffa and Brennan for political --

Justice Potter Stewart: (Voice Overlap)

Mr. Richard J. Medalie: No relation Mr. Justice.

For political leaders of former Senator George -- well, at that time, Senator George Bender but now former or at the time of the trial, former Senator and Chairman of the Republican Party in Ohio, Mr. Bliss, and finally Mr. Paul Dorfman who had been -- who had been identified by Senator McClellan as a -- generally a person of (Inaudible).

Now mind you, none of these identifications went to the truth or went to the -- the facts of whether or not these people were -- had bad reputation and that wasn't the point of the testimony.

The point of the testimony was that since the Committee was interested in the relationship of the union to the -- to reputed racketeers or people of bad repute since they were concerned with the misuse of union funds for political leaders, for union officials, since they were really concerned with the relationship of Senator Bender.

Clearly, this information was pertinent because from this information they could have at least begun other inquiries.

It indicated that as early as 1955, if not earlier, the union was giving expensive gift, Christmas gifts, $100 Champagne Buckets to these people among others.

Now, whether or not this was improper that too was not a question.

That's in this case.

It may very well have been proper.

Maybe there was a reasonable explanation for giving these gifts just as one gives a gift to a secretary or so.

And maybe so, I doubt it but maybe so but that was not the question in the case.

The question was, what was the relationship?

How far could they follow up this relationship by the information they got from the documents in order to find -- find whether union funds are being misappropriated to find what -- whether there was in fact going to be or whether there was now a clean up of the corruption within the Teamsters Union.

So that to say that none of this information was pertinent seems to go fly in the face of the actual -- the actual facts allowed, the actual facts in the record.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: That's right.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Yes.

It's -- I have to say directly or pertinency of the question in a contempt of Congress case.

I suppose -- or at least the Government took this position at trial and I think it's -- it's a very legitimate one that the --

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: -- issue of pertinency here is precisely the same as the issue of pertinency in those two instances of perjury and contempt of Congress.

And of course, there can be no question either as to the evidence that Mr. Presser was indeed aware of what the Committee was doing and what it was after at pages 11 to 12 of our brief.

We go into great detail summarizing the evidence then, that he did indeed have a very clear motive to destroy these documents because his relationship to any of these people named on the doc -- in the documents, in the invoice and so on would what have a direct bearing as to his whole role with respect to certain -- respect to the practices in the Teamsters Union.

And finally, there certainly was clear evidence and indeed last Thursday when Mr. Justice Stewart asked whether there's any question that Mr. Presser had possession of these documents, there just wasn't any question.

And indeed when Presser attempted to raise an alibi, the alibi that during these four days, September 9th through 13th, he was in Washington conferring with Mr. Hoffa, the Government introduced testimony to show that on September 11th, September 10th and 11th, Mr. Hoffa put in person-to-person, long distance telephone calls to Cleveland to Mr. Presser.

And Mr. Presser accepted these calls and discussed various matters for a period of time with him.

So there's no question that he was in Cleveland.

That he attempted an alibi which failed and that he indeed have possession.

And therefore, though the evidence was certainly circumstantial that he in fact defaced, mutilated the document or withheld it, it was pretty clear in light of the motive and all the other evidence --

Senator McClellan's testimony went to -- well, I suppose we could put it up into four categories, perhaps more.

But essentially, the pertinency of the specific inquiries to the general investigation, secondly the pertinency of the documents to the subject matter of the invest -- of the particular inquiries.

Thirdly the knowledge of the petitioner and as far as the knowledge is concerned to be sure Senator McClellan couldn't say, “Well, I know for a fact the petitioner knew this.”

But what he did testify to is whether various matters of the Committee were public knowledge that the -- there -- that the unions had been put on notice that they were in -- that the Committee was investigating various things.

And I suppose to try and prove the element of knowledge, you first have to show at least what it was knowledge -- of what it was knowledge and -- and so that McClellan's testimony did -- Senator McClellan's testimony did go to knowledge in that respect.

And ultimately, certainly did testify to motive of petitioner because by merely stating what the -- what the nature of the inquiry was by stating what the nature of these particular documents were, and what Mr. Hoffa's promised has been as far as cleaning up.

Certainly, one can infer motive and then later on of course when Mr. Presser himself testified he admitted knowledge of various things which we point out at pages 11 to 12.

Justice William J. Brennan: Well, now on what ground was the objection, if any was taken --

Mr. Richard J. Medalie: Well, the objection --

Justice William J. Brennan: -- to Senator McClellan's testimony?

Mr. Richard J. Medalie: Well, there were various objections.

There were three specific objections and the rest were all general.

Let's see.

His objections were mostly -- you can -- the testimony is at pages 16 to 48 of the record.

Now his only specific objections were three in number that it was unnecessary for the Senator to testify with respect to the committee's authorizing resolutions because those documents, "spoke for themselves."

That's at record page 19.

Secondly that the testimony beyond the authorizing resolutions was self-serving and that's at page 20.

And thirdly, that any testimony as to information concerning Senator Bender which the Chairman had received was hearsay.

That's at pages 31 and 32.

And of course, these were answered by the -- by the Committee for example with respect to this hearsay, to be sure it was hearsay but the importance was not whether in fact it was true but how -- what was the impetuous be -- behind the Committee's decision to start investigating the relationship of Bender to the Teamsters Union and so on.

Beyond that everything was general objection --

Justice William J. Brennan: But I -- you told us I think that at no time was it said, "Well if the testimony is to be taken, it should be taken out of the presence of --

Mr. Richard J. Medalie: Never, never.

And as a matter of fact, the petitioners were -- or its counsel's particular actions with respect to their request and charge would seem to indicate to me at least sir, that this was a calculated trial tactic.

If we can't have it one way, we're going to try to have another.

And if we lose on this then we can raise the objection again, saying to the Court I suppose this goes to substantial rights of the individual should be noticed as clear error.

Well, certainly it isn't clear error.

It was far from it.

It was hardly prejudicial.

It was the type of thing that he would have -- perhaps even more prejudice if the judge made the decision because they were as a matter of law pertinent.

So, as far as Senator McClellan's testimony, we don't believe there really is any question as to admissibility.

Perhaps, in all candor, can I say, there was an instance, the Sheridan testimony, in which the Senator read from Sheridan's testimony and this is objected to by petitioner because he said this corroborated Sheridan's subsequent testimony.

But first of all when she point out that the court and the prosecuting attorney over and over again said to the jury, “Mind you, this is not for corroboration, not at all.

We're trying to show that Mr. Schaffer”, who was the investigator, “Had authority to go to Cleveland to carry on this investigation in relationship with Bender."

Then he had authority to examine documents that in fact it -- and it also goes to the Committee's interest in and its knowledge of what precisely happened at the time.

Now, perhaps it's true that per -- this testimony need not have been read.

But the fact that it was read within the -- it seems to me is not prejudicial error.

Especially one should note that in all essential respects, Sheridan's testimony and Presser's testimony as to the -- what happened during those -- that period of time.

The first visit on the 9th and the second visit on the 13th that they essentially were the same.

Oh, they disagreed as to for example whether Sheridan -- whether Presser refused to give it because he wanted the documents Photostated or whether he wanted a receipt.

But that wasn't the essential thing.

The important thing was that Sheridan went there.

That he asked to see the documents that Presser indeed allowed him to see the documents.

That when he requested the documents for some reasons or other, Presser said, “Could you come back at another time?”

And Sheridan said, “Yes, I'll return within a few days.”

And during that period of time, the documents were destroyed.Corroborate if anything, Sheridan corroborated Presser.

Presser corroborated Sheridan as to the essential points.

And since there was careful admonition that McClellan, Senator McClellan's testimony relating to Sheridan had no corroborative effect, I should think it would not have been error.

It should have -- it should've been within his broad discretion.

Justice Hugo L. Black: (Inaudible)

Mr. Richard J. Medalie: Well the -- but-- but the thing is the resolution isn't.

This -- though it may be the source it is not the -- from reading the -- you're not -- you don't understand just precisely how you put these -- these few lines of the resolution into operative effect.

And certainly, there has never been any question up to now that a testimony from a Committee had -- is -- is inadmissible.

I've point out for example the Douche case, although that of course was not a jury trial.

It was a trial to the judge.

But even so, there was -- a member of the Committee was allowed to testify as to precisely what happened.

Beyond that, the resolution itself would never had given any information as to what the specific inquiries were relating to misuse and misappropriation, relating to Senator Bender, relating to the racketeer's and so on.

I --

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Well, the --

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Yes.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Yes.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: That's right.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Yes.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Yes.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: That's right.

Presumably to --

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Well, the relevancy surely -- for example, to I suppose -- reinforce what the words of the authorizing resolution did in fact say that -- that the extra practice was for these investigators to go out and to examine documents.

For example, there's nothing in the resol -- the resolution discussing the setting up of field offices.

But surely that was a practice which the Committee engaged in.

There was nothing as to the -- sort of relationship of the general counsel to the investigators, only in the resolution saying that there shall be a general counsel, that too was necessary in order to trace out the background.

And besides that getting back to what Mr. Justice Brennan pointed out at the very beginning of my argument that since the crime does discuss what is the -- the offense deals with duly authorized and proper inquiry of Congress, I think that it should -- the jury should not be allowed to decide this question or the judge to decide this question in a vacuum of -- of -- here is the document which they're operating under.

Never mind what -- what the realities are, never mind how they do in fact operate, never mind the flesh and blood of it.

This is the authorizing resolution.

This is what happened.

You make your decision.

I think it was perfectly proper and hardly prejudicial to allow this type of testimony.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Oh, there were.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: That's right.

That's --

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: That's right.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Quite right but none of them, none of them went to whether or not this should have been presented to the -- to the jury as opposed to the --

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Yes.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Yes, that's right.

Oh, I agree, it's saying that this was prejudicial because you shouldn't be allowed -- well, certainly for example the identification of the names on the documents where -- was it rather important thing I should think.

It's -- its one thing for example if you had eight names which were the listings of secretaries.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Well, I suppose it didn't make any difference at all and of course at that particular discussion in the evidence was ultimately stricken from the record or say -- the judge said, “Well, this is irrelevant.”

When they -– when they disc -- were discussing Mr. Kennedy and his -- his being a general counsel and going into all the related details, finally the judge has said that the objection would be sustained to that.

And I'll have the page number immediately on that.

But none of that, none of that testimony was prejudicial -- it may have been superfluous, it may have been superfluous but not prejudicial, I think it was.

But example when they did get in --

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: I suppose to trace the background of the Committee.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: For example, on page 23, well perhaps no difference in all because the Judge said -- well, Mr.Knachel said, “Objection Your Honor, may I have the objections to this line of inquiry at page 23.”

And the judge said, “Yes, I don't see how material it is who the counsel was, whether he was Mr.Kennedy, whether he was now in the employ of the Government at the present time and in what capacity.”

In general, Senator --

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Page 23, could you state what the duties of Committee counsel were?

I think that the duties of committee counsel was rather important although --

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: No, they con -- they -- they continued discussing the duties of Committee counsel and the duties of the investigators.

Certainly, it was important to know in details that the investigators had the right to go to request the documents -- to look at the documents, to examine them even prior to subpoena.

This was the -- and -- and indeed in this situation Mr. Presser allowed them to look through the files before the specific request for the four particular files in which the documents existed, were actually with -- before Sheridan made the request and before the request was refused for -- for reasons other than imperfection or defects in subpoena and so on.

As matter of fact, we now -- I -- I suppose we do come to this question of the validity of the subpoena which is the remaining --

Chief Justice Earl Warren: (Inaudible)

Mr. Richard J. Medalie: Yes, sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Richard J. Medalie: That was in relation to the interim report.

That's at -- beginning at page 25 of the record and in page 27 --

Chief Justice Earl Warren: (Inaudible)

Mr. Richard J. Medalie: Well, the purpose again -- the purpose again was to show pertinency of the inquiries, what were they looking for.

And -- and the -- first of all, Senator McClellan said, “Yes, among the unions that were -- we were investigating was the Teamsters Union.

And secondly, there were recommendations, legis -- general legislative recommendations.”

And at page 27, he goes into little summary, first of all legislation to regulate and control pension and health and welfare funds, secondly, legislation to regulate and control union funds, thirdly, legislation to ensure union democracy, and then the fourth and fifth are not that pertinent to the specific instances here.

Now, certainly that was pertinent to whether or not a union can pay a $100 each for Christmas gifts for particular people, especially union officials, public officials, people who had reputed unsavory reputations.

The problem of union democracy certainly was involved here.

What right did the union have to pay these funds?

Thus they had amassed from the -- from the union members without -- without any discussion of it with the union members, and so on, and so forth.

So that -- and mind you, this interim report was not allowed to go to the jury whatsoever.

I'm just trying to find the -- here, at page 213 of the record, the Court specifically excluded the interim report and as a matter of fact, you'll notice that the interim report, that portion of it which related to what Senator McClellan said is -- begins at page 30 -- 388 of the record.

Now, that is merely put in there for the -- for this Court to examine.

It was not presented to the jury.

None of the information and among which was -- were specific references to Presser himself, none of this was allowed to go to the jury.

The only thing that was allowed to go the jury was the testimony as to the legislative recommendations and the testimony as to which unions they're investigating and what's Senator McClellan said.

The -- the interim report was excluded though at page 213.

So the jury had none of this to prejudice them in anyway.

Now, we do come to the issue of the subpoena and whether the chances that the subpoena was signed in blank by the Senator and filled in by the investigators in Cleveland, vitiated the conviction, excused the deliberate destruction of the documents.

We discussed this at great length in our brief and I think that in a few minutes remaining, what I would like to really discuss is this issue on the assumption, even -- or even assuming that the subpoena is invalid, even assuming that the defect in the subpoena was sufficient to invalidate the subpoena.

The question here was, is a subpoena necessary, necessary for the crime of obstructing the Committee inquiry.

Now, in cases arising under the related obstruction of justice statute, involving the intimidation and impeding of witnesses, courts have uniformly said --

And why -- why I used these cases instead of 1505 is because there are very few 1505 cases, (Inaudible) case which is recently decided in the Court of Appeals is about the only one that I know of in addition to this.

I suppose the real reason is because in many instances the people who do in fact obstruct a Committee inquiry obstructed in the course of the testimony so that instead the Congress cites them for contempt and these cases therefore arise here under the contempt statute rather than under the obstruction of the Committee inquiry.

At any rate, in those cases under 1503 is being uniformly stated by the courts and an offense maybe committed even though the witness involved is not under a subpoena.

All that is required say the courts is that the witness have an expectation that he is going to be called before court or judicial officer or even further that only the court or the judicial officer have an expectation that it's going to call the witness.

And we cite cases at brief the page 24 in all --

Justice Hugo L. Black: Any cases from this Court on that, I don't (Voice Overlap) --

Mr. Richard J. Medalie: No.

Well, there are cases.

There are certainly, there was a Russell case, there is the McCracken case.

Those cases involved subpoenas and I should in all candor admit that we have not been able to find a case which involved on the facts of the case itself that no subpoena was involved.

Now, the courts have uniformly stated when the set down the broad principles.

And I especially refer this Court to Smith versus United States of 274 Federal at page 253 which we cited in our brief.

This -- that among the -- the sort of operating principles relating to 1503, a subpoena is not necessary.

The witness need not be -- under a subpoena.

All that is required is that there'd be an expectation that he's going to be called either by himself or by the court or judicial officer.

Justice Felix Frankfurter: How he could be a potential witness?

Mr. Richard J. Medalie: Yes, he must be a potential witness.

He must -- although this potentiality must, I suppose be communicate because knowledge is a vital -- vital importance.

In other words, part and parcel of this expectation that he is going to be a witness must be the knowledge on the part of the person who impedes or intimidates the witness that he is going to be a potential witness or that he is going to be -- or there is an expectation that he will be called.

I think that -- well, we're -- I'm only dealing with this intimidation of witness as itself.

When we come to 1505, dealing with obstruction, I would relate it, analogize the witness cases to this by saying that documents need not be under subpoena in order to constitute an obstruction of unlawful inquiry of a Committee of Congress.

Let me take an example.

Supposing there had been no subpoena in this case, supposing Sheridan under his lawful authority as Senator McClellan testified, supposing he had come to get the -- to investigate, to examine the documents and he arrived to Presser's office and requested these documents and Presser said, “Oh no, you are not going to see these documents, much less take these documents away unless you have a subpoena.”

And Sheridan goes and -- to get a subpoena and in their interim, Presser destroys the documents.

I cannot believe under the authority of the witness cases as well, it's just common sense that Presser should have been allowed to have the license to deliberately destroy the documents merely because a subpoena didn't exist at the time.

Justice Felix Frankfurter: How about documents be given to Sheridan -- to Sheridan (Inaudible) --

Mr. Richard J. Medalie: Well I suppose that -- that then -- then Sheridan would have been (Voice Overlap) --

Justice Felix Frankfurter: He's not (Inaudible)?

Mr. Richard J. Medalie: No.

Mind you, I'm not -- you don't have to be a potential witness to have an obstruction of a congressional committee.

1503 deals with witnesses among other things, and the intimidation of witnesses by third parties, and what I'm doing is analogizing that to the destruction of documents by particular -- or whether the documents need be under subpoena.

Justice William J. Brennan: What -- what you're saying is under 1503 the fellow intimidated must be a witness.

Mr. Richard J. Medalie: That's right or it have an expect --

Justice William J. Brennan: But not under this statute.

Mr. Richard J. Medalie: That's right.

That's right, because we're not dealing -- all we're saying is that there must be an obstruction of a lawful inquiry and -- and that obstruction may take place in any number of -- of -- of ways.

I'll go -- well, one step further I suppose as to say supposing there had been a subpoena which was invalid on its face instead of being issued to Joint Council 41, was issued to Joint Council 23 and instead of William Presser as President, it was served on -- well, they thought it was to be served on John Jones.

Well here, being invalid on its face, Presser's says to Sheridan, “No, you can't have it until there is valid subpoena.”

I can't believe that this would give a license to Presser to destroy the documents before a valid subpoena was issued.

Justice Felix Frankfurter: How can you tell that a subpoena is invalid on its face since -- because (Inaudible) --

That what he has is to say, “Well, I question whether this is the -- the process of the Committee.”

And the least that we should require of him, the least is for him to appear before the Committee or before a law -- a lawfully authorized subcommittee, or whatever have you and say, “I am appearing here especially and -- and -- and questioning the jurisdiction of this Committee or whatever have you because the subpoena is invalid, because he filled it in.

Then at least, this allows the Committee to rectify anything or to say, “Oh, this is a horrible mistake.

Mr. Sheridan has been acting outside his authority.

You -- we never wanted you at all.

You have nothing to do with our particular inquiry.”

In other words as Mr. Justice Jackson said in his concurring opinion to the Fleming-Mohawk case, the importance is not whether there is or is not a subpoena or whether it's signed in blank.

The importance is that the Committee who's lawful pro -- process it purports to be that the Committee had the right to make the ultimate decision to have a hearing,

Justice Hugo L. Black: You go -- your position requires (Inaudible) to this extent doesn't that there's an agent or any investigating Committee over that goes to a business, a place of business, and says we're investigating you and we want you show papers here as (Inaudible) some of them.

He could be tried for obstruction of justice if he threw them away.

Mr. Richard J. Medalie: Yes.

Justice Hugo L. Black: You're maybe right.

I'm not saying it (Voice Overlap) --

Mr. Richard J. Medalie: Well, I -- I would -- I would go -- it qualify that somewhat.

Supposing indeed in the -- of course a business, you destroy documents every five years and the Committee says, “In two months, we are conducting investigation now with relationship to us and so.

And in two months, we're going to get to your particular corporation or your particular union and we're going to re -- investigate your -- your documents going back 10 years.

Therefore, we respectfully request that you save those documents.”

I don't believe in those circumstances he can destroy and even if it is the lawful course of business, however, if the Committee says, “In 1962 that we're undertaking a long range investigation.”

And in five years from now, we'll get to you, therefore don't destroy documents.”

I don't know whether that would or would not (Voice Overlap) --

Justice Hugo L. Black: (Inaudible) when he violates the law.

Mr. Richard J. Medalie: I think you have to read into this and to the request, the concept of reasonable request.

He -- well, he should -- he certainly knows in this circumstance that these documents were pertinent.

He knows that this is what the Committee was --was wanted and desired.

They wanted to examine it whether or not the subpoena existed under these circumstances to put these documents beyond the reach of the Committee forever by destroying them.

It seems to me to be not within the proper -- it seems to me to be precisely within the scope of the statute.

This is precisely what Congress intended to do by promulgating the statute to prevent just this type of obstruction.

Justice John M. Harlan: Could I ask you a question?

Are there some official agencies, administrative agencies for example that have no power to subpoena (Inaudible) life services?

Mr. Richard J. Medalie: I'm not sure.

I -- it -- I would just venture to say that probably some do not have the right of -- of subpoena.

Justice John M. Harlan: Well, this statute was would --

Mr. Richard J. Medalie: The statute --

Justice John M. Harlan: -- go on to cover them as well as those that have some --

Justice John M. Harlan: I'd like to ask you another question.How many prosecutions, if you know, had there been under this statute as distinguished from the companion statute?

Mr. Richard J. Medalie: Well, there only been about two or three at most.

This case of course, there was the (Inaudible) case dealing with congressional inquiry.

Then there were several others dealing with the administrative agencies and among the cases we cite are -- are -- in our brief are some, but very few.

And I think and when you run through the U.S.--

Justice John M. Harlan: How many cases have reached Court of Appeals level, do you know, under this statute?

Mr. Richard J. Medalie: Yes, about -- about three or four again, about three or four.

You'll -- that they're all listed except for this (Inaudible) case and -- and the Court of Appeals are here in the U.S. Code annotated.

Justice John M. Harlan: Are they all cases that -- where subpoenas have been issued?

Mr. Richard J. Medalie: I'm not sure.

I -- I think so in -- in the situation --

Justice John M. Harlan: What I'm trying to get at, this question that's raised now, has it ever been litigated under the --

Mr. Richard J. Medalie: No, I don't --

Justice John M. Harlan: -- statute in the Court of Appeals?

Mr. Richard J. Medalie: No.

I don't believe that this -- well, that -- in this particular -- okay.

I don't believe that this particular question of whether this -- you need a subpoena or not has been ever litigated on the facts of the case.

There have been many statements by courts in -- in discussing general principles which have in dictum said so and indeed even the dictum in the 1503 cases go this far.

Chief Justice Earl Warren: Perhaps it's like this, never been construed by the state court so far as (Inaudible)?

Mr. Richard J. Medalie: As far as I know -- well, I don't know whether state courts have gone there -- have ever gone --

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: I'm just -- probably.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: Probably so.

Of course, there's a venerable history of the obstruction of justice statutes and -- and there are many cases there.

But this -- this was brought in relatively late to -- to cure what Congress considered to be a gap in the whole obstruction of justice.

Justice John M. Harlan: Did the Government concede the invalidity of the subpoena?

Mr. Richard J. Medalie: No.

We don't concede the invalidity of the subpoena at all and we discussed it in terms of ratification of waiver by the petitioner in the sense that he (Inaudible) -- after the March subpoena had been issued in -- in April, he -- another subpoena was issued in which it says, “The Committee waives the production of documents in Washington that you've delivered to the Cleveland Office.”

I think that construing the record as a whole one may find sufficient validity but we do not stand or fall on validity.

We say that the subpoena alone is not necessary for the crime of obstruction.

And in fact, I suppose prefer to -- to base our argument on this because the flaunting of the law, the flaunting of the lawful process of the -- of the Committee to us is serious enough to go beyond the technical requirements of the subpoena or not a subpoena.

Justice Felix Frankfurter: (Inaudible)

Mr. Richard J. Medalie: The Cudahy case, yes.

Justice Felix Frankfurter: The Cudahy case (Inaudible).

Justice William J. Brennan: (Inaudible) Cudahy?

Mr. Richard J. Medalie: The Cudahy, yes.

And then there is the Fleming, yes.

Justice Felix Frankfurter: (Inaudible)

Mr. Richard J. Medalie: In Cud --

Justice Felix Frankfurter: (Inaudible)

Mr. Richard J. Medalie: Well, they were.

Cudahy was a -- a delegation of the subpoena issuing power to a law -- to a reach --

Justice Felix Frankfurter: (Inaudible)

Mr. Richard J. Medalie: -- (Inaudible) -- to a subordinate and the Court found that in that situation, there was no basis in the statute for delegation.

And in the Fleming case, the Court held that the -- the delegation was allowable under this statute

Justice Felix Frankfurter: (Inaudible)

Mr. Richard J. Medalie: No, you can't say.

But if it was -- this was allowable and indeed and then Justice Jackson went on to say, the important thing in this is to allow the con --

Justice Felix Frankfurter: (Inaudible)

Unknown Speaker: Five-to-four.

Mr. Richard J. Medalie: It was five-to-four yes, yes.

And -- and of course in this case, we -- we don't at all say that this is a delegation to a subordinate.

Unknown Speaker: (Inaudible)

Mr. Richard J. Medalie: This is the --

Justice Felix Frankfurter: That issue (Inaudible) --

Mr. Richard J. Medalie: In --

Justice Felix Frankfurter: (Inaudible)

Mr. Richard J. Medalie: That's -- well, that's right and the subordinate was allowed to issue these subpoenas at will without any -- without any --

Justice Felix Frankfurter: (Inaudible) in terms of McClellan's, the (Inaudible) under the subject of the subpoena (Inaudible)?

Justice William J. Brennan: And the persons to be --

Mr. Richard J. Medalie: And the person --

Justice Byron R. White: -- served with the subpoena.

Mr. Richard J. Medalie: Well that's right.

I -- I should point out -- my time is up and I'll -- but I should point out that the -- the April subpoena which no one questions, the April subpoena which was indeed a lawful process of the Committee with is put in exactly the same terms.

The -- the documents it request are exactly the same kinds of documents that are requested in March subpoena, only in the March subpoena joint -- the -- the records asked by for Joint Council and in the April Joint Council Welfare Funds and special other funds.

But -- so it would seem that the request for cash disbursing checks and for records and so on, it's a form which the Committee itself must have worked out and which is -- was just an automatic thing to put -- put into this (Inaudible) --

Justice Felix Frankfurter: (Inaudible) the constitutional question, they've got -- the internal management of the Committee had allowed the chairman to entrust the authorization to his (Inaudible) --

Mr. Richard J. Medalie: No.

Justice Felix Frankfurter: -- through his question.

Mr. Richard J. Medalie: Yes, yes.

It -- it is if you get to that point.

What they say is that it was a delegation rather than the signing point.

Justice Hugo L. Black: (Inaudible) follows the wealth subpoena or the one that was signed in blank and was filled by the officer, is that right?

Mr. Richard J. Medalie: Then I'm not --

Justice Hugo L. Black: (Inaudible)

Mr. Richard J. Medalie: Oh, oh.

That -- I'm -- I'm sorry.

I -- I am not familiar with those (Voice Overlap) --

Justice Hugo L. Black: (Inaudible)

Mr. Richard J. Medalie: What was requested for them?

Justice Hugo L. Black: I thought it was both of them.

Mr. Richard J. Medalie: Thank you.

Chief Justice Earl Warren: Mr. Cardinal.

Rebuttal of John G. Cardinal

Mr. John G. Cardinal: There are a few things that I like -- would like to correct, the -- the statements of the Solicitor General on and that is with respect to these two subpoenas that he had mentioned or had made some reference to.

There is only one subpoena involved in this case and that's the one that was served on the petitioner in March.

Now, there is a reference through cross-examination of Sheridan to another one which was signed in April.

But as to that particular subpoena when he was asked if that had been prepared (Inaudible) in Cleveland, he was quite definite.

And on page 89 of the record, he says that -- he said that I say that it was prepared in Cleveland so that the reference that we are making some issue out of a subpoena that was in all respects or in some respects invalid and is against another which was in the -- executed in the same way, but which we do not make any issue to is an incorrect statement of the record.

I think another thing that has -- has bothered me throughout this appeal is that the Government consistence upon referring to Mr. Presser as making an alibi.

He did take a stand.

He corroborated Sheridan in that.

He testified that Sheridan left his office before he did on September the 9th.

There was some as -- some point of differences to one he returned, but he -- in any event, he returned on September the 12th and Sheridan did not return until September the 13th.

So in any event the -- on September the 9th and the 13th, the petitioner was in his office when Sheridan was not.

There was never any attempt to make an alibi in this case.

I think that the statement that the matters were pertinent as a matter of law and therefore, the petitioner's failure to state to the court specifically that such matter should be sought evidence on pertinency should be heard outside the jury cannot be sustained on the basis of Braden as cited by the Solicitor General because in the Braden case which was the converse, the failure to object was not taken as the conclusive factor for the Court's decision on that particular point.

And in this case, the enumerable objections cannot be taken as nullities because the Court did in many cases recognize exactly what the objection was for.

Now --

Justice William J. Brennan: Are you arguing Mr. Cardinal that in fact there was an objection that taking this testimony in the presence of the jury?

Mr. John G. Cardinal: Yes.

Justice William J. Brennan: Well, you can't give us --

Mr. John G. Cardinal: Not -- not that --

Justice William J. Brennan: -- some ref -- I beg your pardon?

Mr. John G. Cardinal: I'm -- I'm sorry.

I don't mean to say and I had mentioned before that a request to hear this testimony outside the jury is -- has not been taken in the record.

The fact that the objection was taken to the hearsay testimony that would be presented by the -- by the Senator was in our minds an objection on the ground that this testimony would be self-serving to the extent that the Government was attempting to form or provide a basis much as they would be for a Committee to show pertinency.

They were laying the foundation for pertinency by bringing in this testimony and that was the basis of our objection that it would be self-serving to that extent.

But those words are not in the record.

Justice Potter Stewart: How long did Senator McClellan testify overall?

Mr. John G. Cardinal: I'd say about an hour and a half or two hours.

Justice Potter Stewart: How long was the total of the trial (Inaudible)?

Mr. John G. Cardinal: Total trial was three or four days.

I don't know exactly -- I think it was -- there was a weekend in between.

I've forgotten, but I think it was three or four days.

But the fact that his testimony only took the first morning was not allowed to escape the jury because the prosecutor was permitted on cross-examination of Presser on the final day to go to some length in cross-examining him as to the findings of this Committee, special findings as -- as to Dorfman that he had ascended to the presidency of some union as a result of the murder of his -- his predecessor.

Chief Justice Earl Warren: (Inaudible)

Mr. John G. Cardinal: I can point -- yes, it's at 255 of the record.

And then it -- it continues and on 256 of the record, the prosecutor says, “Does it refresh your recollection that the Committee made the statement, etcetera to which there is objection?"

And that is continued through Dorfman, Hoffa, Beck, English and I don't know whether Mr. Brennan was in there or not.

And in his argument, he was again permitted to say that they did not bring this up to prejudice the mind of the jury against the -- the petitioner.

They merely wanted to show a motive but the motive was manufactured.

Unknown Speaker: (Inaudible)

Mr. John G. Cardinal: At 256, that's Presser -- that is the petitioner.

Unknown Speaker: (Inaudible)

Mr. John G. Cardinal: Yes.

That is the -- oh, that's -- that is the -- the defendant below and the petitioner here and that was the prosecutor's cross-examination of the -- the then defendant on the basis of this interim report finding.

Chief Justice Earl Warren: This -- this have not -- this question has nothing to do with direct examination, the questioning?

Mr. John G. Cardinal: Oh, I'm --

Chief Justice Earl Warren: (Inaudible) to his position and as a result of (Inaudible) the murder of his predecessor and that he was elected (Inaudible).

That's the first time I've heard that (Inaudible)?

Is that -- is that have anything to do -- of the question at least in your opinion?

The question is directed (Inaudible)?

Mr. John G. Cardinal: Not Presser's -- not Presser's direct examination, but while McClellan was on the stand and these objections were being taken to his testimony, he was permitted over objection to read on page 43 of the record, his Committee's findings relative to English, Hoffa, Brennan, Bender, Kernel, Bliss and Dorfman.

Chief Justice Earl Warren: Well, when I asked Mr. Medalie for the findings of the (Inaudible) referred us to page 27 (Inaudible).

Mr. John G. Cardinal: Oh yes.

On page 40 -- begins on page 43.

Chief Justice Earl Warren: (Inaudible)

Mr. John G. Cardinal: And it -- it begins on page 42 where the objections were taken and the Court originally sustained the defendant's objection.

The middle of 42, the Court says, “Objection sustained.

I don't' see what materiality it has.”

The prosecutor then went into this statement as to why he wanted it.

The Court not satisfied yet said, “Was it a matter that one official gave another official a Champagne Bucket?”

At that point, the Senator recognized the problem and said it's a question of union -- using union dues.

Then the Court for some incongruous reasons said you may continue and he then characterized these names.

And you will see also at 257 that the reason for overruling the objection, objection on cross-examination was because the name was on -- one of the names was present.

One -- one more thing before I closed, I ‘d like to -- I'd like to mention that Bender was under a personal subpoena by the Government at the time and spent his time in the hall of the court, but was never called.

I'd also I like to mention that on September the 9th, Sheridan had the documents which are the subject of this lawsuit in his hands and could have taken them by giving a receipt which was then the custom and practice of the Field Office and Joint Council 41 but refused.

The entire -- the entire financial record of Joint Council 41 pertaining to these gifts was in the hands of the field office on September 9th 1958.

I think of significance is that the subpoena which the petitioner has been accused of violating was issued six months before the document involved here was demanded and he was not charged, not indicted till six months following and that the documents involved were not -- and this is in the record, were not turned over to any department other than Sheridan's custody as appears until November 18th of 1958, approximately three months later.

Thank you for the court's attention.

Justice Hugo L. Black: (Inaudible) -- I didn't quite understand you, its page 257 (a) where they asked the witness, someone has to remit the --

Mr. John G. Cardinal: Prosecutor.

Justice Hugo L. Black: He was aware that Beck had been convicted for stealing $200,000 or $300,000?

This case was argued on the general docket in the Spring that if I might, I would like to go through the facts briefly once again.

As you may recall it's an indictment and conviction for the violation of Title 18, 1505 of the US Code.

The facts which led up to the indictment of the petitioner are briefly and they begin with the filing or the serving of a petition purportedly that of the McClellan Committee on the petitioner on March 21, 1958.

The subpoena -- I'm sorry, I might have said the petition, it was the subpoena that was served on Mr. Presser, called for the all of the records of Joint Council 41 which is the -- an affiliation of the Ohio Conference of Teamsters for the northeastern and southeastern parts of Ohio, for a period of approximately 10 years from July -- from January 1, 1959 until January 1, 1958.

Immediately following the service of this subpoena upon Mr. Presser, it was affected with the Committee's field office in Cleveland an arrangement whereby the accountants and attorneys for Joint Council 41 gave to the field office personnel, those records demanded by the subpoena and for which the field office receipted.

This arrangement continued until at least September 5 of 1958 at which time Sheridan who had served the subpoena on Mr. Presser, again returned to Cleveland and served a subpoena upon Koza and Stoyer, the accountants and lawyers for Joint Council 45, demanding that the office files of that firm as they pertain to Joint Council 41 were to be displayed in Washington on September 9, five-four days from that day.

On September 9, Sheridan again returned to Cleveland and went to the office of Joint Council 41 where he testified that in as much as he was aware that some of the files had not been turned over to the field office, he attempted to examine those files still in Joint Council 41's office to determine whether or not they should have been.

After some conversation with Mr. Presser, the files -- the cabinets in the office were turned over to Mr. Sheridan and he examined those for a considerable period of time and determined that he would take four particular files.

In one of these files, there were, according to his testimony, two documents, one an invoice known as the Doich invoice and its ex -- the Government's Exhibit 12 upon which there were listed eight names.

The invoice was the counsel's receipt for the purchase of eight champagne buckets.

On the other document, was a list of names which included the eight on the Doich invoice but other names behind which were listed certain items known to the investigator to have been sums of money for or gifts, Christmas gifts.

These were contained in an envelope marked X-mas list.

Mr. Presser testified that he wanted a receipt for the four files that were taken out.

Because of the lateness of the hour, Mr. Sheridan said I can't do that, I will be back and they by mutual agreement, agreed to have the files photostated and Sheridan was to return on the 13 and pick up the photostated copies.

Mr. Sheridan's testimony was that there was no testimony -- no conversation concerning a receipt that Mr. Presser said that he would not let them go out until they were photostated.

At any way, on the 13th of September, Sheridan again returned the office and Joint Council 41, look through the files, and found that the Doich invoice had been mutilated to exclude the eight names listed on the left-hand corner and the list which include those eight names and others, was missing.

He immediately made some remark to Mr. Presser and Presser was too have said, “You have your job to do, I have mine.”

Mr. Sheridan left, taking the files, giving no receipts and testified before his committee on September 17th concerning this incident.

Now a year-and-a-half later on March 23, 1960, Mr. Presser was indicted for obstructing the Committee in its investigation and according to the indictment that the allegations are that the Committee at that time at all times material to the indictment was duly in the due and proper exercise of its investigative powers pursuant to its authorizing resolution and that in accordance with its own rules of procedure, issued the subpoena demanding the documents which the petitioner knew were relevant to the Committee's investigation and were demanded by the subpoena.

During the course of the trial, Sheridan took the stand and in the course of cross-examination of Mr. Sheridan, it was brought out that the subpoena which was served on the petitioner on March 21 of 1958 was in all likelihood prepared in Cleveland.

That the subpoena was signed, the blank subpoena was signed by Senator McClellan, Chairman of the McClellan Committee and was addressed by and filled in, the substance of the subpoena filled in by employees in the field office in Cleveland.

Now Senator McClellan also had taken the stand and with respect to the organization of the Committee stated with fairly good specificity the subpoena power of the Committee, nothing was said concerning this particular subpoena.

However, the likelihood of Sheridan's testimony was further bolstered when the supplemental subpoena issued on April 1 and in the record as defendant's Exhibit A was without qualification signed by the senator in blank and issued to -- and issued by the field personnel.

Now at that point in the trial, we asked the Court, we move the Court to quash the subpoena and the indictment and discharge the defendant.

On that particular point, the trial court held that this subpoena was valid and later the Court of Appeals held that it was valid, but that no subpoena was necessary in this instance.

Now our contention is that under the indictment and under the processes of the Committee, the Committee had to be in the -- in order to be in the due and proper exercise of its investigative powers had to have issued a valid subpoena for the production of these documents.

That the --

Justice Arthur J. Goldberg: Is that because of the statute or because of the indictment?

Mr. John Cardinal: It's because of the indictment and because of the rules of procedure of the Committee itself.

There is rule four of the rules of procedure provides that the chairman has the right to issue subpoenas or he has the right to delegate that authority to a member of the Committee, providing that authority is delegated in writing.

So that issuance we contend provides not only the signing of a subpoena, but includes the address that would be the subject to whom the subpoena is addressed and the documents or the person's body who is demanded before the Committee.

The fact that issuance has a greater connotation than merely signing the blank subpoena is recognized at page 26 of the Government's brief.

And in as much as the Committee in this instance purported to act through its coercive power of the subpoena, we contend that the voluntary turning over of these documents cannot later validate original an originally void process.

We also contend contrary to the Government that such a process cannot then be ratified by the Committee because the Committee in this case instance, in this particular instance, could not have delegated to Sheridan or any employee the power to make cogent or validate a blank piece of paper signed by Senator McClellan.

We contend therefore that the trial court was in error that the -- in not discharging the defendant, that the Committee was not in its due and proper exercise of the investigative power authorized under its authorizing resolution, Senate Resolution 74.

it was in violation of its own rules of procedure that the subpoena was not a defective process, it was a void process and that the void process cannot be validated by ratification because it could not have been delegated in the first instance.

Justice John M. Harlan: You're arguing then I take it, is it necessary part of the Government's case under this indictment that the subpoena was validly issued?

Mr. John Cardinal: That is our position Your Honor, that it had to be a valid process of the Committee.

Justice John M. Harlan: Supposing no subpoena had been issued at all and the Committee has instructed the investigator to go around and tell Mr. Presser that he was going to be subpoenaed and that they were interested in his files and he's been gerrymandering this investigation and then the same currencies have taken place.

Would that have been reachable under the statute?

Mr. John Cardinal: I don't think that -- I don't think that it would have.

I don't think that the --I think that for otherwise as required and it's argued by the Government, the manner in which the Committee could obtain witnesses and documents.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John Cardinal: Yes, sir.

That's right Your Honor but I was attempting to answer Mr. Justice Harlan's question.

I don't think that in the circumstances that you put that the -- that the petitioner would have been in violation of 1505 unless he voluntarily appears.

I believe that he -- if he voluntarily appears before the Commission -- the Committee and in a sense subjects himself to its jurisdiction that that isn't broken by something that transpires there merely because he's not under subpoena.

I do believe that the Committee might take some action by resolution or otherwise which could place him in a position where he was bound to comply.

Justice William J. Brennan: [Inaudible]

Mr. John Cardinal: Well, I attempted to Mr. Justice Brennan.

I believe that they have the right, the Committee has the right to obtain documents and to obtain information from witnesses either through the compulsory power of the subpoena or otherwise and I think or otherwise is some voluntary submission to the Committee's jurisdiction.

Justice William J. Brennan: [Inaudible]

Mr. John Cardinal: I don't believe that that would.

Justice William J. Brennan: [Inaudible]

Mr. John Cardinal: I think that in a situation where the petitioner may have voluntarily subjected those files to the jurisdiction of the -- and that would be a fact question, I'm not sure what the legal answer would be.

Under the circumstances in this case, if there had been no subpoena, I do not believe that the petitioner would be in violation of 1505.

I don't --

Justice William J. Brennan: [Inaudible]

Mr. John Cardinal: In all candor I would say no.

Justice John M. Harlan: The documents are taken in your own premise.

I suppose these documents of the subpoena was invalidated you say, they would have been subject to a valid issued subpoena, assuming the subpoena is valid and as to the effect of this conduct of Presser at least know that the horizon of the Committee intended the subpoena them and therefore, they discovered that their subpoena was invalid that they -- from the issue of the valid subpoena.

Mr. John Cardinal: Well, I think that in one respect that assumes that the Committee would want them.

Justice John M. Harlan: You gave every evidence that you wanted.

Mr. John Cardinal: Well of course our contention is that the Committee has never acted in this case up to the time and including the time of the indictment.

But --

Justice Byron R. White: [Inaudible]

Mr. John Cardinal: I think that he was an authorized investigator of the Committee.

His duties were outlined by Senator McClellan.

But, his duties were not to germinate blank pieces of paper into subpoenas.

Justice Byron R. White: [Inaudible]

Mr. John Cardinal: Yes.

Justice Byron R. White: [Inaudible]

Mr. John Cardinal: I think that's my position which probably hasn't been made clear if I believe that if Sheridan under the same circumstances had gone in and said, “We're going to want these records” and the petitioner said, “Well, I'm going to burn them” and he does burn them and they're later subpoenaed that there is no violation of 1505.

I believe conversely if the Committee evidences in some way other --

Justice Byron R. White: [Inaudible]

Mr. John Cardinal: Well that presents a close question but I think that the further you get to the official act of the Committee's acting into the thing, that then you don't read what it really required then you get full scope of otherwise.

Your Honor, I --

Justice Hugo L. Black: Is that [Inaudible] was used to committed [Inaudible]

Mr. John Cardinal: No, there are many.

As a matter of fact, the cases apart from the one that we have right here indicated that such a note would have no legal effect.

I don't know in this area --

Justice Hugo L. Black: Is there any evidence there has been as to such practice in even the Senate or the House?

Mr. John Cardinal: Not to my knowledge.

I have no knowledge --

Justice Hugo L. Black: Not in this record.

Mr. John Cardinal: There is none in this record of practice other than in this case, that's right.

Justice Byron R. White: [Inaudible]

Mr. John Cardinal: I understand they do but that was from only -- only from the briefs of the Government.

Justice Hugo L. Black: Weren't that -- do they not by something notifying them that we want the records?

You don't let us have it without a subpoena and we have a right to subpoena then get them.

You don't let us have it without them and we'll issue a subpoena.

Is any statute that fives them any right during that times required it to be held.

Mr. John Cardinal: To my knowledge Mr. Justice Black, there isn't any, but there may be one.

Justice John M. Harlan: Doesn't the Department of Justice and many administrative agencies frequently go and ask people to submit their records without necessitating of issuing a subpoena?

Mr. John Cardinal: I think that that's true.

Justice John M. Harlan: And you say that this obstruction of justice statute in the case of that kind was not reach a knowing destruction of records in the face of an informal request for the Government that they be produced.

Mr. John Cardinal: On those facts, I don't think that the Committee has officially acted in it.

I don't believe.

Justice John M. Harlan: Do you think the Commission stands in any different position in this respect and what the Department of Justice or any administrative agency stands.

Mr. John Cardinal: Well, I think implemented by statute, they do stand in a different sense.

I think that it's a delegation of the power.

Justice Hugo L. Black: Had there been any conviction within the time for people who's refusing to turn over the whole paper except the [Inaudible] Department of Justice or any other agency, told them without subpoena, we will want them and sometimes --

Mr. John Cardinal: I don't know.

Justice Hugo L. Black: I'm just asking for information.

Mr. John Cardinal: I don't know of any Your Honor.

Justice Hugo L. Black: I'm familiar [Inaudible] in practice, you should take it up with people and say we're going to want them, we'd rather give it to him without a subpoena.

You can't get him without a subpoena unless you've agree to it.

We're asking you to let this happen and if they don't give them a subpoena but there's any -- are there any cases if you know of anywhere that people who have been convicted for doing something with papers before they were subpoenaed.

Mr. John Cardinal: I don't know of that any.

I don't know of any such case.

If I have any time left Your Honor, I might use it for rebuttal.

Chief Justice Earl Warren: Well, were you going to discuss the evidence of Senator McClellan?

Mr. John Cardinal: Your Honor, I had intended to.

We believe that the evidence of Senator McClellan was wholly erroneous in this instance, in this case broken down his testimony was organizational, a recitation from what was described is the interim report, the recitation from the Committee's report and certain conclusions that he drew from this testimony.

Now the Government attempted to justify all of these evidences on the ground that it tended to show that the Committee was really investigating under its authorizing resolution that the names on the documents were pertinent to that inquiry and knowledge of the petitioner to the fact that the Committee wanted those names.

Now we believe that following the organizational testimony of Senator McClellan, the entire evidence of the senator was self serving.

He begins by relating the special findings of this Committee to certain members of the teamster's union and certain other persons not connected with the teamsters union which are supposed to have apprised the petitioner that the bad character of those people which are read into the record at pages 42 through 46 that the Committee was going to want the names listed on this invoice.

He also was permitted to check or read the Committee's report of Sheridan's testimony concerning his visit to the Joint Council 41 office before the Committee on September 17th, that would be four days following his leaving Cleveland.

Now the testimony before the Committee by Sheridan was given under two subpoenas neither one of which is the one that forms the basis of the indictment.

So that when Sheridan then came on to testify, the testimony of Senator McClellan has already said has placed before the jury that this testimony does indicate that the Committee was deprived of evidence which would have -- documents which did impede the inquiry of the -- of the Committee.

Chief Justice Earl Warren: And they introduced them on the grounds of pertinency, is that right?

Mr. John Cardinal: That was one of the grounds that they attempted to justify it on.

It -- grounds that these names listed on the invoice were pertinent because the special findings that had been concluded by the Committee prior to the issuance of the subpoena served upon the petitioner where in some form some manner connected with the teamster's union.

The petitioner was neither called before the Committee at that time.

None of the people other than this Christmas gift -- list were all known to him.

He was not present and the entire findings of the Committee were in a form of ex parte entered against the petitioner.

Chief Justice Earl Warren: Was that evidence objected to?

Mr. John Cardinal: The evidence of all of these was subjected too repeatedly.

Particularly the interim report which at first was sustained, the objection was sustained then the senator said, “The reason we want these names are pertinent is that we are interested in the use of the union funds for the payment of Christmas gifts.

The trial judge let it in for that purpose.

It's a completely none secretive because he talks about the rise of Dorfman to a power of eminence in the insurance field after the death of his predecessor referring that maybe the petitioner had something to do with Dorfman's predecessor's death.

That was led in for that specific purpose at the time that the counsel went over the exhibits that went into the record.

The Court at page 212 and 213 of the record refused to let the interim report go to the jury because he said he did not feel that it was pertinent, material to the matters that we have here.

But you may argue it and argue with the prosecutor did because at 335, he points out, I think it's 335, I'm not sure of that page, points out that the reason the put this in was to show that Presser had knowledge that they were investigating these men and therefore tore the invoice.

Chief Justice Earl Warren: Well, Mr. Pollak.

Argument of Stephen J. Pollak

Mr. Stephen J. Pollak: Mr. Chief Justice, may it please the Court.

Petitioner was convicted of corruptly obstructing an inquiry of a Committee of Congress with knowledge that documents were sought that they were pertinent to the inquiry, he defaced.

He was convicted of defacing one document in concealing or destroying another.

The issue presented is whether knowing obstruction of this inquiry is excused because a subpoena for the documents was signed in blank by the chairman of the Committee.

As Judge Weinfeld in a similar case where there was no subpoena stated, it is here whether in effectiveness of inquiries depends upon “the result in a raise” between the marshal to serve process for the production of documents and those bent on their destruction in their endeavor to obstruct the administration of justice.”

This is the Solo case cited in the Government's brief.

Justice John M. Harlan: What page is that on?

Mr. Stephen J. Pollak: The Solo case, it is cited in a citation at page 24, Mr. Justice Harlan.

Justice John M. Harlan: Thank you.

Mr. Stephen J. Pollak: Petitioner also questions the admissibility of certain testimony by Senator McClellan as well as whether certain of that testimony should have been permitted to go before the jury.

Briefly certain facts are important.

The McClellan Committee was established by resolution to inquire into improper practices in the labor management relations field.

It was given powers in accordance with statute, statute quoted at pages 2 and 3 of the petitioner's brief, 2 U.S.C. 190b which includes the power to require by subpoena or otherwise the attendance of witnesses and the production of documentary materials.

The Committee investigated the misuse of union funds to influence public officials, to enrich union officials and the domination of, the possible domination of unions by persons outside.

It issued in March of 1958 a report of finding with respect to the teamsters union.

Thereafter a subpoena was issued for the production of documents to Joint Council 41 of which the petitioner was the president.

At the trial of this case, it was developed that that subpoena was probably signed in blank by Senator McClellan.

Pursuant to the arrangements between the lawyers for Joint Council 41 and the attorneys for the Committee, there were several deliveries of documents pursuant to that subpoena.

That was in the time subsequent to March 1958.

In the late summer, while this inquiry was going on, the late summer of 1958, the Committee was informed by counsel for the teamsters union and its provisional president that a clean up Commission had been formed of which former Senator Bender was the chairman.

The Committee turned its attention in part as part of its inquiry in relationships or the possibility of relationships between former Senator Bender and the teamsters union and as part of the ongoing inquiry in Ohio the investigators of the Committee were instructed to pursue an inquiry into a possible relationship.

Pursuant to these instructions, the Committee's investigator, Sheridan, called upon the offices of Joint Council 41 to review documents, if any, which should not get and produce in response to the subpoena issued six months prior to that time.

The petitioner was agreeable to the inspection of the files in that office and the investigator spent the day reviewing those files.

He found an invoice described by petitioner's counsel as the Doich Invoice showing gifts to champagne masters, large champagne bucket in which you put a champagne bottle, expensive gifts to former Senator Bender to another Ohio political figure, to officers of the union, and others.

He also found a yellow memorandum page, yellow pad page, on which names of recipients of gifts were listed, including the recipients of the champagne masters as well as other names.

He asked the petitioner for permission to take four folders of documents included in which were these two papers; the invoice and the yellow memorandum page.

The petitioner stated that he was agreeable and then said that he wish to photostat the documents so that he needed to retain them.

The investigator said that that was agreeable and an agreement was made that the documents would be left and photostats would be made and they would be turned over directly thereafter.

Four days later, the investigator returned pursuant to telephone arrangements with the petitioner, returned to the office to pick up the four file folders.

Upon the arrival, the petitioner handed in the file folders and the investigator leafed through them and found that the invoice had been mutilated to tear off the bottom portion which listed the eight names of recipients of the gifts of champagne masters.

The yellow memorandum page was missing entirely.

The investigator called this to the attention of the petitioner and said, “I should have known better than to have trusted you” and the petitioner's response was, “You have your job to do, I have mine.”

Petitioner was indicted for concealment of these documents under Section 1505 of Title 18 which makes it a crime corruptly to obstruct the due and proper inquiry of a Committee Congress.

He was charged, pardon me, he was charged with concealment well knowing that the documents were sought, that they were pertinent to the inquiry and required to be produced and sentenced upon conviction by a jury to eight months confinement.

It is the position of the Government that Section 1505 of Title 18 does not require a subpoena.

The elements of this crime are four.

First, that the general subject matter -- pardon.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Stephen J. Pollak: It is the Government's position that under the language of this indictment which refers -- the indictment is set out at pages 5 and 6 and 7 of the record which describes the documents using the words the invoice which for a reasonable relation of the subject matter of the inquiry and was relevant to it and was required to be produced to the Committee under and accordance with a subpoena.

Justice Arthur J. Goldberg: Would the Government have to prove [Inaudible]

Mr. Stephen J. Pollak: We do not believe that the Government was required to prove that the subpoena was valid under the statute and we would take the position that the proof that the subpoena was valid, if not made would have been an immaterial variance from this indictment.

The --

Justice Hugo L. Black: That's a pretty important thing, isn't it?

It has been in the history of the law, hasn't it, if that came into the subpoena.

Mr. Stephen J. Pollak: The issuance of the subpoena, Mr. Justice Black, is an extremely important thing and we take this position because we read the statute to require proof that there was -- that the documents were sought proof, known that the petitioner knew the documents were sought, that the petitioner knew the documents were relevant, and that the petitioner destroyed them with the corrupt intent to obstruct the inquiry.

We consider that this proof is made and made here without a showing that the subpoena was a valid subpoena.

We note that the subpoena here is a subpoena signed in blank and that the doc -- that it had been issued some six months before and there had been arrangements between lawyers for both parties that the documents were produced.

So we don't wish to concede that this was at the time these documents were concealed or mutilated at that time a subpoena which had not been ratified.

Justice Hugo L. Black: I'm much interested in your written [Inaudible] because I don't know what it is now.

You mean that if the committee decided and want to investigate what is the motive, and notifying that they wanted to investigate their private papers, books, letters, and so forth and from that time on, it would be a violation of the law based on [Inaudible] if so, where is the statute that would justify such an unusual proceeding?

Mr. Stephen J. Pollak: The -- in this, the Government relies on Section 1505.

Now that's the only statute on which we place our reliance and we -- it is our position that if the Committee notifies through an official authorized investigator informs a party that documents are sought for its inquiry and if those documents are known by the party to be relevant and pertinent to the inquiry, then the party cannot destroy those documents --

Justice Hugo L. Black: Even though they have abided --

Mr. Stephen J. Pollak: -- to obstruct the import.

Justice Hugo L. Black: Even though they have private papers use in the conduct could have been it?

Mr. Stephen J. Pollak: We would draw or at least in answering your question, I don't want to preclude the possibility that a business which has a routine method of clearing out its records, could not continue to practice its routine practices for clearing records and therefore show that it had no intent to obstruct the Committee's inquiry.

Justice Hugo L. Black: What I'd like to discuss is rather fully and I think why.

I have issued a lot of subpoena.

Before issuing and trying to get a piece of paper even when I wanted them to consent I carefully drew up what was I consider to be a valid subpoena, gave it to him and notified him and told him that a great deal of time could be saved if they would simply let our people look at it.

And say wanted to, they can look at it there and didn't have to go to the extent and trouble bring it up.

But it never occurred to me at this time, I do not know that anyone saw that we could preempt people from doing what they feel with that papers merely by notifying that we would want them in the future.

Mr. Stephen J. Pollak: Mr. Justice Black, we also make this position clear that the subpoena here was the subpoena which was signed in blank called for production of the documents in Washington before the Committee and certainly we would not mean to foreclose that the petitioner or any other party that we see such a request could not immediately bring its objections or complaints with respect to the Committee's request or its desire to move these documents from its shelves to the Committee.

This is not a prosecution here for failure to produce the documents.

I certainly would not wish to say that where a subpoena which the respondent could show was invalid had been served that he could be prosecuted for failing to produce.

Justice Hugo L. Black: I understood you were going far enough to suggest that without a subpoena you could do this.

Does your case depends on that?

Mr. Stephen J. Pollak: Without a subpoena, a person could be prosecuted for destroying documents known to be sought in relevant to a congressional inquiry.

We certainly --

Justice Hugo L. Black: But more prosecutions where they destroyed them after and I had something to do with one where they would destroy after subpoena was served.

But are there any cases anywhere that you have in your brief that people have been convicted for destroying papers and what they deliberately with those papers merely because they've been notified but permitted that they would want them sometime in the future.

Mr. Stephen J. Pollak: We cite to the Court in our brief without --

Justice Hugo L. Black: It may have been done.

I'm asking because --

Mr. Stephen J. Pollak: Yes, yes Mr. Justice Black.

Justice Hugo L. Black: I'm wholly unfamiliar with it.

Mr. Stephen J. Pollak: The Solo case, the District Court of New York, Judge Weinfeld was faced with the destruction of four letters sought for production before a pending grand jury.

In that case, there was a telephone call from the US Attorney to the party in which the party stated that he was agreeable to appearing and to producing the documents.

Thereafter the party was alleged and their following convicted of destroying the four letters and the Court ruled that without a subpoena, he was in violation of 18 U.S.C. 1503 --

Justice Hugo L. Black: What happened to that case and what did he rely on?

Mr. Stephen J. Pollak: In that case, he relied on -- he relied on a primarily Your Honor on a state case, Commonwealth versus Southern Express Company.

The Court of Appeals of Kentucky 169 Southwest 517, a case not direct and recent case in which there had been removal of records outside the jurisdiction of a pending grand jury.

And the Court held that the removal of records that were known to be desired by a pending grand jury was indictable at common law and held that the individual citizen may not resolve himself into a court and self determined what records maybe produced.

There the citizen was claiming a privilege of self incrimination and he removed the records saying -- making his own determination that the privilege covered them.

That Commonwealth v. Southern Express was cited and quoted on that point on the removal, the record is not -- citizen not being able to constitute himself a court and remove records --

Justice Byron R. White: [Inaudible]

Mr. Stephen J. Pollak: Mr. Justice White, we believe that the events that occurred in the six months thereafter, including the agreements between counsel, including the knowledge of the Ohio investigation and the creation of Ohio field office which in the testimony of Senator McClellan was brought home to Senator McClellan would constitute a ratification of this subpoena.

Justice Hugo L. Black: As I understood, it seemed to me this court below decided this case and your argument rested on the assumption that without any statute and more definitely this one 1507, when a Committee informs the man in business that he has got to hold his papers, because the Committee would want him in the future that if he does what he pleases with his papers, you can be tried as a criminal.

Mr. Stephen J. Pollak: Well, it is our position that there maybe cases considerably closer to our line than the present case.

We think that in this case, the knowledge that the Committee -- documents were sought is brought home to this petitioner without doubt.

The knowledge that the documents were pertinent --

Justice Hugo L. Black: Oh there's a knowledge that is it your position to be knowledge on the part of a business that they wanted paper or sufficient to prevent his destroying without becoming a criminal.

Mr. Stephen J. Pollak: Well, the documents are also known to be pertinent and where he destroys them to obstruct the inquiry, yes Mr. Justice Black.

Justice Hugo L. Black: (Voice Overlap) the subpoena in order to object to his papers to the law.

Mr. Stephen J. Pollak: Well, reserving the contention that the subpoena here had been ratified, we also would --

Justice Hugo L. Black: I think that's a different question.

Mr. Stephen J. Pollak: We also would take the position that this conduct is made criminal without a subpoena.

Yes Mr. --

Justice Byron R. White: [Inaudible]

Mr. Stephen J. Pollak: No.

Justice Byron R. White: [Inaudible]

Mr. Stephen J. Pollak: We certainly would say that that was made criminal by the witness provisions of 1505, yes.

Justice Byron R. White: [Inaudible]

Mr. Stephen J. Pollak: He has not been subpoenaed.

Where there is knowledge that the person was or is intended to be a witness although a subpoena has not issued, we would say that is also --

Justice Byron R. White: [Inaudible]

Mr. Stephen J. Pollak: The closest case that we have on this is the Samples case which in vowed a co-defendant who is under bond.

That case is also cited in our brief wherein the -- yes.

Justice William O. Douglas: Page 23.

Mr. Stephen J. Pollak: Page 23.

Justice William O. Douglas: Of your brief.

Mr. Stephen J. Pollak: The -- that case, the co-defendant, was under bond had his privilege against self incrimination and he was therefore could not be said that he was certain to be a witness and he was -- but not subpoenaed.

And he was convinced by the defendant in the Samples case to go outside the jurisdiction.

Also, we read the Walker case as --

Justice Byron R. White: [Inaudible]

Mr. Stephen J. Pollak: Yes.

Well I -- I want to be clear the state with the facts on.

Justice Byron R. White: [Inaudible]

Mr. Stephen J. Pollak: Well, I believe that the Walker case is also a case where the -- that was again a co-defendant and to my knowledge that case does not involve the bond.

Walker was -- the Court stated it was not necessary to prove that the witness had been subpoenaed.

She was a witness, if she intended to testify at the trial and I don't read the cases saying that the witness or the co-defendant had been subpoenaed or there's no indication that that witness was under bond.

Where there is knowledge that the person intends to be or was -- intends to be a witness, then Section 1503 of the courts and Section 1505 for administrative agencies, executive departments, and the congressional committees would cover people.

Certainly, there is -- even in the old Sinclair case I believe a statement that is not necessary that the person be under subpoena.

Justice Hugo L. Black: What happens if the case as to the opinion written by Judge Weinfeld?

This is not pertaining to the victim, it didn't go up in the higher court.

Mr. Stephen J. Pollak: No, I do not know that it went to any higher court, it's a District Court case and solely a District Court case.

Justice Byron R. White: [Inaudible]

Mr. Stephen J. Pollak: I don't think to hide from the subpoena server if he's out for you; I don't think that I have the problem because where a witness is concerned, the person -- the witness retained the possibility or the potentiality of giving the testimony.

I'd certainly say it's our position that it's a crime to hide from the process server and then take the time and go destroy your documents where the process seeks the production of documents.

The situation that we have is that the documents are destroyed.

They're no longer possible to be brought into the forum, the judicial forum, the Committee forum and the person has taken the law into his own hands to make them no longer available.

We're not saying that the objections and complaints which the person wishes to raise and the Committee's interest in the documents to its right to the documents cannot have full process before the Committee.

Here the petitioner chose to act in the time he bought by making an agreement with the investigator and to produce the documents after photostat and the time that he bought and destroyed it and by doing that, he brought himself within this statute.

We think properly.

Justice William J. Brennan: [Inaudible]

Mr. Stephen J. Pollak: In this, I cite two cases that --

Justice William J. Brennan: [Inaudible]

Mr. Stephen J. Pollak: Well we have the rule of the -- of this -- the rule of procedure of this Committee which said that the subpoenas to be signed by the chairman be issued by the chairman or a member.

Therefore, while we don't wish to take our position as to the reach of possible laws enacted by Congress whether the subpoena could be signed by or signed by McClellan and then as subpoenas under Rule 45 filled out by an authorized person of the Committee, I think that probably would be a valid process.

But here, whether it was a rule of this Committee why then we look either the ratification or the fact that the statute does not require a subpoena.

Justice Hugo L. Black: As I understand you to say it that you thought it would be a valid process and you know just sign the subpoenas in blank, not on this the subordinate to fill in.

Mr. Stephen J. Pollak: As I understand the rules that permit subpoenas for the production of documents in civil proceedings which are signed by clerk and then filled in by the attorney for one of the hardest, in other words the documents to be produced.

Justice Arthur J. Goldberg: It is done in the District Court everyday isn't it?

Mr. Stephen J. Pollak: I believe it is Your Honor.

And --

Justice Hugo L. Black: But in England [Inaudible], wouldn't it?

Mr. Stephen J. Pollak: Well, this is not a situation where there is a general warrant and the person does not have a forum in which to make the objection.

He did not need to let the investigator in or turn over any documents.

He could have gone before the Committee to make this complaint.

Here this was just the destruction of the documents.

I wanted to call two more attentions -- cases to your attention, Mr. Justice Black, the Bosselman case, the Second Circuit case involving destruction of documents and all the relational documents sought by a grand jury.

It is cited in our brief and I believe in that case too, the documents were interfered with prior to the sitting even of the grand jury.

Although it's a very brief report of the case and I don't mean to suggest that it's dispositve.

The petitioner's second question concerning the admissibility of certain of the testimony of Senator McClellan as well as whether that testimony should have been heard before the jury; on this the short answer in the view of the Government is that this testimony as can be demonstrated quite clearly from the review of it and it's covered in the Government's brief subsequent to page 36.

This testimony was relevant and admissible on jury issues other than the issue of pertinence.

Justice William J. Brennan: [Inaudible]

Mr. Stephen J. Pollak: The case Mr. Justice Brennan was tried on the understanding and upon an early ruling of the Court which we read to confirm the Court's view that the issue of pertinency was to be proved beyond a reasonable doubt and tried to the jury.

This meant that the Government's burden was to show that these documents, including names of recipients of $100 gifts were pertinent to the inquiry of the Committee.

Now the course of the investigation of the Committee can be shown to -- can be introduced in proof to show what the Committee's inquiry hears, what is the subject matter of its inquiry.

This subject matter was the misuse of union funds to influence public officials, to enrich union officials or to -- or the influence of unions by persons outside.

Now in identifying who one of the recipients not only Mr. Dorfman but the others, identifying those persons we believed it was necessary to show that these documents were pertinent to the Committee's investigation.

The Committee had a legitimate right to be interested in this investigation in documents showing a gift to particular individuals one who was the head of the clean up Committee or --

Justice William J. Brennan: [Inaudible]

Mr. Stephen J. Pollak: This report did not go to the jury and it was early in the trial admitted into evidence and then withdrawn.

Justice William J. Brennan: [Inaudible]

Mr. Stephen J. Pollak: I believe it was Your Honor, yes.

Justice William J. Brennan: [Inaudible]

Mr. Stephen J. Pollak: Well the report was of some pages and I think the statement was made that the reading of important points in the report would save time.

The names and identification of the persons to whom these gifts were given also was important to show that these documents contained information which the petitioner would have a motive for keeping from the Committee.

I think it also is important that the Government had the burden to show knowledge on the part of the petitioner that these documents were sought by the Committee and were pertinent to its inquiry.

Now this report from which that statement was read also mentioned by name, Mr. Presser, and I think it was part of the Government's case or it was able to present to the jury that report as providing an inference that the report's contents came to the potential --

Justice William J. Brennan: [Inaudible]

Mr. Stephen J. Pollak: Mr. Justice Brennan, the Court's charge and the statement of the prosecution in the record show a careful attention to that and I think it's important that every instruction requested by the petitioner was given by the Court and that he was asked twice whether he had objections in accordance with Rule 30.

He was asked in the presence of the jury, his lawyer, and after the jury was excused whether there were any objections to the charge, and he had none.

He received every instruction that he had a -- that he wished to request.

None were denied, although several of the Government's instructions were.

So I do believe that the jury was fairly portioned on the use of the evidence.

Justice Byron R. White: [Inaudible]

Mr. Stephen J. Pollak: I believe you're correct, Mr. Justice White.

I believe that there was a submission to the jury of the testimony from the report.

It's just that the Court said that the full report did not need to go to the jury.

Chief Justice Earl Warren: Mr. Pollak, what do you have to say about the question that was asked of Senator McClellan and his answer to the effect that what the conduct of the defendant had interfered with his Committee?

Now for a prominent man -- for a man of his stature to go before an ordinary lay jury and state as his conclusion, the ultimate fact that they were required to determine that the man had obstructed the work of his committee.

Do you think that's inconsequential or first, do you think it's -- do you think it was proper to ask that question to get that answer?

Mr. Stephen J. Pollak: Well I can't review --

Chief Justice Earl Warren: No, just what -- with that proper -- do you think it was a proper question?

Mr. Stephen J. Pollak: I think that -- had the question not been answered -- asked that the Government's case would have been as well presented because I believe that the --

Chief Justice Earl Warren: Oh no, that is -- that isn't the question.

I asked you Mr. Pollak, do you think it's a proper question or improper?

Then we can discuss whether if you say it isn't, then we can discuss whether it was prejudicial or not but do you believe that was a proper question and a permissible answer.

Mr. Stephen J. Pollak: Well, I believe that in these proceedings, the counsel or not uncommon for the chairman of these committees to have been called as witnesses by the Government or the defense and I believe further that I can't testify from the records in those cases but that the course of the proceedings are testified too and that a question whether the loss of these documents was an impedance of the Committee's work is a proper -- is a proper question for the chairman of the Committee to respond to it.

Also, the statute here covers endeavor to obstruct and I do not believe that the answer to the question really caused any --

Justice John M. Harlan: Of course, technically the question or objection well is going for legal conclusion.

Mr. Stephen J. Pollak: Yes, but this --

Chief Justice Earl Warren: Was that objected too?

Mr. Stephen J. Pollak: During the course of Senator McClellan's testimony, there were general objections to perhaps --

Justice William O. Douglas: Did answer or this was something for motion strike?

Mr. Stephen J. Pollak: Yes, there were general objections throughout and I was going to say I believe that probably have been objective to it, yes.

I do believe that the evidence given to the answer was merely cumulative to what was a matter which even this Court could determine that as a matter of law, these documents were pertinent to the inquiry of the Committee.

If pertinent, then their destruction was an impedance to the Committee or Government attempt to impede.